At White & Jeet Law, we frequently consult with Albertans who are concerned about their legal rights when confronted by an intruder or an attacker. The Criminal Code of Canada provides mechanisms for individuals to defend themselves, their loved ones, and their property. However, the law requires a precise balance. If you cross the line from defending yourself to punishing your attacker, you may find yourself facing criminal charges.
The Legal Framework: Section 34 of the Criminal Code
In Canada, self-defence is a “justification” defense. If raised successfully, an action that would otherwise be considered a crime (such as assault) is deemed lawful due to the circumstances.
The Three-Part Test for Self-Defence
As per section 34(1) of the Criminal Code, a person is not guilty of an offence if they meet the following three criteria:
- Reasonable Belief: They believe on reasonable grounds that force is being used against them or another person, or that a threat of force is being made;
- Defensive Purpose: The act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
- Reasonable Response: The act committed is reasonable in the circumstances.
Understanding “Reasonable Force”
To determine if your actions were “reasonable,” Courts will look at the totality of the circumstances. Under Section 34(2) of the Criminal Code, the Court will consider factors including but not limited to the following:
| Factor Evaluated by Courts | Practical Application in Self-Defence |
| Nature of the Force or Threat | Is the attacker unarmed, wielding a weapon, or making verbal threats? |
| Imminence of Danger | Was the attack happening right then? Did you have other means available, such as retreating or calling 911? |
| Each person’s role | What was the attacker doing? What were you doing in response to the attacker? |
| Size, Age, Gender and Physical Capabilities | A 100-pound homeowner defending against a 250-pound intruder may be justified in using a weapon, even if the intruder is unarmed, due to the disparity in physical capabilities. |
| History and Relationship | In instances of domestic violence, a victim’s history of abuse from the attacker will strongly inform whether their defensive actions were reasonable. |
| The Nature and Proportionality of the Person’s Response to the Use or Threat of Force | The Court will assess whether you used as much force as is reasonably necessary or if excessive force was used. |
The Limits of Lawful Defence
It is critical to understand where the legal protections of self-defence end in Alberta. The guiding principle is: Defend, do not attack.
- You cannot seek vengeance: If you successfully knock an attacker to the ground and they are subdued or retreating, the threat is over. If you continue to strike them while they are down, you transition from a defender to an assailant, and you can be charged with an offence.
- You cannot use lethal force to protect property: Section 35 of the Criminal Code deals with the defence of property. It allows you to use reasonable force to stop someone from stealing or damaging your property. However, Canadian law places human life above property. Shooting a trespasser solely because they are stealing your vehicle in the driveway will almost certainly result in criminal charges.
Protecting Your Rights with White & Jeet Law
Self-defence is a nuanced, highly fact-specific area of Canadian law. If you have been forced to defend yourself, your loved ones, or your property, it is imperative that you do not speak to the police about your circumstances and seek legal representation.
At White & Jeet Law, we will meticulously examine the evidence to demonstrate to the Crown prosecutor and the Court that your actions were justified, reasonable, and absolutely necessary. Contact our offices immediately if you are under investigation or facing charges related to a self-defence incident.
