Defence of Person or Property: Charges Alleging Unreasonable Assault

Question: What do you need to know about the legal limitations upon self-protection?

Answer:   Understanding the legal framework surrounding self-defence and the defence of property is essential for making informed decisions in critical situations.  David Oake, Barrister (o/a MuskokaCriminal.Law™) can help clarify your rights and guide you through the complexities of Criminal Code R.S.C. 1985, c. C-46, specifically sections 34 and 35, ensuring that you are prepared and protected under the law.

Limitations Upon Self Protection

In certain circumstances, individuals may need to take immediate action to protect themselves or their property.  In such situations, the law recognizes a limited right to use force, provided that such a response is both reasonable and necessary under the circumstances.  This principle, often referred to as the self-help right, reflects a careful balance between empowering individuals to defend against threats and ensuring that defensive measures avoid excessive escalation into unlawful conduct.  A clear understanding of these rules is crucial for anyone confronted with the difficult choice of whether to intervene for personal safety or the preservation of possessions.

The Law

Within section 34 and section 35 of the Criminal Code, R.S.C. 1985, c. C-46, the statutory foundation for the right to defend person and property is found.  These provisions establish the circumstances in which force may be used, the limits on such force, and the principles that guide courts in evaluating whether defensive actions were lawful.  Respectively, these sections address situations involving defense of the person, focusing on whether the force used was reasonable in response to a perceived threat as well as setting out the conditions under which an individual may take measures to protect possessions against unlawful interference.  Together, these sections codify long-standing principles of self-defense while emphasizing proportionality, necessity, and the context in which the defensive act occurred.

Defensive Strategies

When a person faces an assault charge arising from an incident where defensive force was used, the case strategy often centres on demonstrating that the response was reasonable in light of the circumstances as existed at the time.  Courts place considerable weight on the perspective of the accused, recognizing that defensive actions are often taken in moments of urgency and under conditions of stress or fear.  Establishing factors such as the nature of the threat, the immediacy of the danger, and the proportionality of the response, can be critical in persuading a court that the force applied, even if harmful, remained within the boundaries of lawful self-defense or lawful defense of property.

At the same time, defense counsel may challenge the prosecution attempt to characterize the force as excessive by highlighting the unpredictability of real-world encounters.  Testimony, physical evidence, or expert opinion, may be introduced to show that the accused held a perception of risk that justified a heightened response, even if the outcome caused greater harm than might appear strictly necessary in hindsight.  Where evidence supports that the accused acted out of an honest and reasonable belief in the need for protection, the legal frameworks under section 34 and section 35 provide a potential shield against criminality, even in cases where the results of the confrontation are serious.

Specifically, when defending against an assault charge arising from allegations of excessive force, several key arguments may be advanced, including:

The Establishment of Immediacy of the Threat:
By demonstrating that the accused faced an urgent or pressing danger requiring swift action without opportunity for retreat or alternative measures;

The Show of Proportionality of Response:
By illustrating that the force applied was reasonably matched to the nature and seriousness of the threat;

The Proving of Honest and Reasonable Belief:
By confirming that the accused genuinely believed defensive force was necessary and that such belief was objectively reasonable given the circumstances;

The Emphasizing of the Context of the Encounter:
By highlighting the stress, fear, or confusion in which the decision to use force was made, supporting an understanding that perfect judgment cannot be expected in the moment;

The Justifying of Defence of Property Considerations:
By arguing that measures were taken to prevent unlawful interference with possessions, and that the steps chosen were within the scope contemplated by the law; and

The Addressing the Unavailability of Alternatives:
By reinforcing that less harmful options were not realistically available, making the chosen response the most reasonable under the circumstances.

Burden of Proof on Prosecution

The prosecution bears the burden of proving beyond a reasonable doubt that the force used exceeded what the law permits.  This means that once an accused raises self-defence or defence of property as an issue, the Crown must demonstrate that the actions taken went beyond what was reasonable or necessary in the circumstances.  The high standard of proof serves as a safeguard for accused persons, ensuring that convictions require more than just speculation or minor doubts about the appropriateness of the defensive response.

Further reinforcing the burden of proof protection, section 11(d) of the Charter of Rights and Freedoms guarantees that any person charged with an offence is presumed innocent until proven guilty in a fair and public hearing.  This constitutional safeguard ensures that the accused without a requirement to prove justification for defensive actions, but rather that the Crown must establish guilt by disproving self-defence or defence of property beyond a reasonable doubt.  The presumption of innocence serves as a cornerstone of the criminal justice system, protecting individuals from wrongful conviction where the circumstances of a defensive act remain uncertain or open to interpretation.

Conclusion

The law surrounding self-defence and defence of property reflects a careful balance between the right of individuals to engage in self-help protection and the need to prevent excessive or unlawful use of force.  While the Criminal Code sets out the statutory framework, each case ultimately turns on the specific facts, including the immediacy of the threat, the reasonableness of the response, and the belief of the accused at the time of the incident.  Coupled with the presumption of innocence and the heavy burden of proof, these protections ensure that individuals avoid being unfairly criminalized for taking defensive measures in moments of danger.