Few words in law are more loaded than "a person is not responsible for an act if the act is carried-out in self-defence of self or of another".

Spelled with an s (self-defence) in America, the songs remains the same in almost all common law jurisdictions.

The Context

The concept of self-defence has bewitched the law since Hammurabi's Code. When something is done of absolute necessity, it would be harsh indeed if a person was held to the full consequences of his act.

For example, imagine yourself walking to the local coffee shop. Suddenly a mad senior on a scooter comes barrelling down the middle of the sidewalk at high speed  and evidently no intent to make allowances for your person. You jump off the sidewalk to avoid the collision and land on someone else's land area. You have just trespassed.

In another example, it is late one afternoon when you observe one teenager standing over another and beating the downed teenager with his fists. You intervene and physically restrain the bully. You have just committed assault and battery.

Criminal Law

In criminal law, offenses are clearly defined. Some require a mere proof of the criminal act (actus reus); others require proof of an intent to commit the crime (mens rea).

But overlapping all kinds are a number of excuses or justification which, if successfully tendered to the court by the accused, exonerates him or her from criminal liability, crime notwithstanding. Those who practice criminal law refer to these simply as "defences".

Intoxication, mental disorder and alibis are examples of defences.

Self-defence is another.

In the common law, self-defence has a rich history. Grounded in a Latin maxim borrowed from Roman law (necessitas indicit privilegium quoad jura privata), it has been stated as follows in R v Price:

"The law discourages persons from taking the law into their own hands. Still the law does permit men to defend themselves ... And when violence is used for the purpose of repelling a wrong, the degree of violence must not be disproportioned to the wrong to be prevented, or it is not justified."

In Canada, criminal law is set out in a comprehensive statute called Criminal Code in which applies throughout the territory of Canada, indiscriminately as to provinces.

Notwithstanding that the defence of self-defence has a rich history in the common law, Canada has chosen to codify this defence and has done so in the Code with a group of statements of law:

  • "Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.
  • "Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

  • "Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if (a) he uses the force (i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and (ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm; (b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and (c) he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.

  • "Provocation includes ... provocation by blows, words or gestures.

  • "Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it. Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.

In a hotly dissented decision, R v Pétel (1994), Canada's Supreme Court opined that, and as rephrased at ¶18 of R v Malott in 1998:

"... There are three constituent elements of self-defence where the victim has died: (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary... An honest but reasonable mistake as to the existence of an assault is permitted where an accused relies upon self-defence. Accordingly, the jury must be told that the question is not was the accused unlawfully assaulted? but rather did the accused reasonably believe, in the circumstances, that she was being unlawfully assaulted?"

Even though in that case, the Supreme Court used the words where the victim has died, criminal law authorities postulate that these are the three elements of the self-defence defence.

Further, more recent cases have suggested that an air of reality must lend itself to the self-defence argument.

Given the burden of proof in criminal law cases, the Crown has the onus of showing that the accused did not act in self-defence, which need only be elevated to the standard of reasonable doubt.

The law does not expect the accused to calculate E=MC2 when, in a pickle, determining reasonable force.

Allowances are made for the moment of crisis.

As Justice Martin of the Ontario Court of Appeal wrote in R v Baxter, in the face of a dangerous situation, no reasonable person could be expected "to weigh to a nicety, the exact measure of necessary defensive action".

Defence of Property

The law does not look as favourably upon self-defence when it comes to defence of property.

In R v Price, the English court added:

"There is no case that we are aware of in which it has been held that homicide to prevent mere trespass is justified. The party in lawful possession may justify gently laying his hands on the trespasser and requesting him to depart. If the trespasser resists, and in doing so assaults the party in possession, that party may repel the assault and for that purpose may use any force which he would be justified in using in defence of his person."

Canada's Criminal Code provides separate rules of law when it comes to defence of property, at 38-41, as follows:

  • "Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified in preventing a trespasser from taking it, or in taking it from a trespasser who has taken it, if he does not strike or cause bodily harm to the trespasser.

  • "Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.

  • "Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary.

  • "Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.

  • "Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary."

In a 1966 article in Criminal Law Review, the author wrote:

"A person may go so far as inflicting death on a burglar. In modern law however the stress should be laid on the element of personal danger which may be anticipated from the cornered offender. Thus where the circumstances are such that the householder could not believe that there was any real risk of serious personal injuries from the burglar it would not be justifiable to use lethal force."

In R v Sonmor, Sheldon Reimer was found at trial to have "a very destructive lifestyle". He grossly misbehaved at a house party, including the sexual harassment of another guest. He was asked to leave but refused. He was finally taken out of the house but then started pounding on the windows and the doors. Another guest of the party, the accused Lloyd Sonmor, who had not been drinking, nevertheless lost it,  picked up a baseball bat and struck Reimer, who suffered serious injury.

Sonmor was charged with aggravated assault and he successfully plead self-defence, with Justice Wright relying on the reasoning set out in R v Baxter, op.cit.

In R v Gunning,the facts were even more tragic. Jody Gunning, 35, was hosting a private party in Fraser Lake, British Columbia on May 6, 2000. Gunning had been drinking when he found a 23-year old Indian man, Chester Charlie, unknown to Gunning, in the house.

Gunning fell asleep and woke up to see Chester reaching through his nightstand.

Gunning: "Get the fuck out".

Charlie then put his feet up on the bed and dared Gunning to: "Make me".

"As the accused approached, the deceased kicked him causing him to stumble back and bang up against the bedroom door.

"(Gunning) left the bedroom and returned there shortly after with a loaded .12 gauge shotgun.

"The accused again told him to leave. Mr. Charlie stood up, turned to the accused and said, "Fuck you," and spit at the accused. The accused then caused the shotgun to discharge striking Mr. Charlie in the side of the neck and killing him instantly."

At trial, he quoted the Criminal Code and argued that he had used force reasonable under the circumstances in which he found himself.

He was convicted of second degree murder but the Supreme Court ordered a new trial1 adding:

"There are four elements to the defence raised by Mr. Gunning: he must have been in possession of the dwelling-house; his possession must have been peaceable; Mr. Charlie must have been a trespasser; and the force used to eject the trespasser must have been reasonable in all the circumstances....

"Where the defence arises on the facts, the onus is on the Crown to prove beyond a reasonable doubt that Mr. Gunning did not act in defence of property.

"The intentional killing of a trespasser could only be justified where the person in possession of the property is able to make out a case of self-defence."

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