The Requirements for Claiming Self-Defence

Written on behalf of Barrison Law

If an accused acted in self-defence, they may not be found guilty of an offence. This defence prevents people from being punished for taking reasonable steps to protect themselves from harm.

But, not every act is considered self-defence. This article reviews the specific requirements for relying on self-defence to excuse what would otherwise be criminal conduct. This blog post will also look at a recent decision of the Court of Appeal for Ontario in which the Crown contended that the accused was not eligible for the defence because there was no threat of force and the response was unreasonable.


The Criminal Code lays down the elements of self-defence

According to section 34 of the Criminal Code (the “Code”), a person is not guilty of an offence if the three elements of self-defence are satisfied. 

Firstly, there needs to be a trigger – the accused must believe on reasonable grounds that either force is being used against them or someone else, or that a threat of force is being made against them or the other person. Secondly, they need a motive – the accused must commit the act constituting the offence to defend or protect themselves or the other person from the use or threat of force. Finally, the response must be appropriate – the act of the accused must be reasonable in the circumstances.


The Code also mandates the consideration of various factors 

The Code requires courts to consider all the relevant circumstances, including a list of specific factors, which include: 

  • factors relating to the threat or force, for example, its nature and whether the use of force was imminent;
  • matters relating to the accused, such as their role in the incident;
  • issues relating to any party to the incident, such as their physical capabilities; 
  • matters relating to the relationship between the parties, for example, the existence of any prior threats; and
  • factors relating to the accused’s act, including the proportionality of their response to the threat and whether there were any other means available to respond.


The Crown must disprove self-defence if it is arguable

The defence is available when the accused’s act would otherwise amount to an offence, provided that self-defence is raised by the accused and it is arguable. The burden of proof is on the Crown to disprove at least one of the elements beyond a reasonable doubt.


Accused killed man; claimed he acted in self-defence

In the recent decision of R. v Sparks-MacKinnon, the accused shot and killed a man in downtown Toronto. He was later charged with second-degree murder. At his trial, the accused admitted to the shooting but claimed that he acted in self-defence.

The accused told the Court that he got out of his car with a loaded gun in order to scare the driver of another car that had cut him off. As soon as he stepped out of the car, the other driver pointed a gun at him and uttered threatening words. The accused thought he was going to be killed, so he shot the man to defend himself.


Trial judge decided there was a reasonable doubt on whether the accused faced a threat of force

The Crown argued that the man who was killed never pulled out his gun so there was no threat of force. It was noted that the man had previously shot the accused. The Crown claimed that the accused had actually recognized and followed the man and shot him while he sat in his car in order to retaliate for the prior shooting.

The trial judge decided that the Crown had not disproven the first element of self-defence beyond a reasonable doubt. The judge thought that the man was aware of the accused’s presence, but that the accused did not know the person’s identity in the car as he approached it.


Shooting the man was not proved unreasonable beyond a reasonable doubt 

In the alternative, the Crown claimed that shooting the man was not a reasonable action by the accused in the circumstances.

The trial judge applied the factors set out in the Code, noting that the harm was imminent as they faced each other with loaded guns and that retreating and re-entering his car would not have prevented the man from shooting at him.

Even though the accused bore significant responsibility for the circumstances that led to the need to defend himself, by approaching a car to threaten someone with a gun, the judge noted that this was only one factor. It was not possible to conclude beyond a reasonable doubt that the act of shooting the man was unreasonable. The Crown appealed. 


Court of Appeal upheld the self-defence finding

The Court of Appeal rejected the Crown’s arguments on appeal. For example, the Crown said that the judge placed undue weight on the fact that the man had a gun and did not consider the accused’s role in creating a risky situation. The Court explained that self-defence could still be available to a person that breaks the law or conducts themselves in a dangerous way and this was just one factor that needed to be weighed against a range of others.

The Court of Appeal dismissed the Crown’s appeal. 

Contact the Criminal Defence Lawyers at Barrison Law in Oshawa to Build Your Defence Against Serious Charges

The trusted criminal defence lawyers at Barrison Law understand that incidents which lead to violent criminal offences rarely have one side to the story. Your side needs to be told as well. We will build the most rigorous defence possible and protect your rights in court or negotiate with the Crown’s office if that is best for your circumstances.

Barrison Law offers a free confidential consultation with prospective clients. We also have a 24-hour emergency phone service if you need us now, as in the case of a bail hearing. Please call us at 905-404-1947 or reach out online.