Self-defence when a person is the victim of an unprovoked assault (Section 34 of the Criminal Code ).
Bruce Engel of Engel and Associates criminal lawyers in Ottawa explains self-defence as it is described in Sections 34 of the Criminal Code when a person is the victim of an unprovoked assault.
Though self-defence is defined more than once in the Criminal Code, the application of the definitions is very complicated and something that lawyers, prosecutors and judges spend hours trying to unravel. My general advice to my clients is that one is entitled to defend oneself in a number of situations without being penalized by the law, and I go through those various scenarios with my clients
Generally, self-defence applies when people use only as much force as is reasonably necessary in the circumstances in order to protect themselves against an assault. That means that if someone has attacked you, you can use force to repel the attack, but you can’t use any more force than is necessary to repel the attack.
The courts however, and especially in the Baxter decision, have said that when defending oneself, one need not weigh to an exact nicety the extent of the defence. In other words, if you are going to hit back and the blow that you delivered causes a significant injury, you are not expected in a very volatile situation to weigh the exact measure of your self-defence to match exactly the force of your attacker. So, there is some leeway–but not a lot.
Section 34 of the Criminal Code covers self-defence when you are the victim of an unprovoked assault. The accused person in that case can repel the force by his own force, but the force must not be more than is necessary to simply defend oneself. Once an accused delivers force that is so forceful that there is an intention to cause death or bodily harm to his attacker, he has crossed the line; therefore, the force cannot be so excessive, that you can cause death or bodily harm.
We can look at another circumstance. If you push away someone who is attacking you and they fall and crack their head on a rock and are seriously injured or killed, the court looks at what happened and how the injury was caused. The court will judge whether that push was reasonable in all the circumstances. I would think that, if someone is attacked and they pushed someone away and that person falls and bangs his head and dies, the individual will not likely be held criminally responsible; he or she should not be charged, nor found guilty. The court may want to closely scrutinize the facts, which is why this whole area can be convoluted and unpredictable.
The courts look at whether the accused is justified in the injury caused to the attacker. They look to see if he believed he was under threat of death or bodily harm. A person may have more leeway to cause injury to his attacker if the person believes he will die if he doesn’t defend himself.
For all scenarios we can devise, there will always be situations that no one can predict, that can arise in the heat of moment, and that will need to be examined and applied to the rules of the common law and to the self defence sections contained in the Criminal Code. So, if I’m pushing you away and I push just to get you away from me and you happen to fall, well that’s certainly no intention to cause you bodily harm. That’s an intention only to repel, and if you fall and are seriously hurt, that’s just an accident. If I push you and we are on a high cliff and I know that you are going to fall off, that’s no longer a simple push to repel an attack. That’s a push with the intention to kill the attacker. The court always looks at the circumstances before they decide if self-defence will reasonably apply.
If the victim says that they thought they were being seriously attacked and responded with extreme measures, the judge has to look at what would be justified and reasonable for a person to think in those particular circumstances. The judge will also looks at what the victim was thinking and whether it is rational to think that in the situation at the time. For instance, if someone is coming to rob you, you are not necessarily justified in shooting them. If it’s clear that that person simply wants property belonging to you, it’s not evident that they physically want to harm you. They just want your property. If you are not actually being seriously physically threatened, then a response to theft, such as shooting the thief, is not necessarily reasonable.