BC Criminal Defence Lawyer Blog

Gordon Dykstra and Bill Good on CKNW: Home Invasions and Self-Defence in BC

Check out the interview between Gordon Dykstra and Bill Good on CKNW on Sept. 20/11 discussing home invasions and self-defence in British Columbia.

Criminal Cases and Self Defence

When a crime is committed but there is a justification or an excuse for committing it, this is known as a defence.  A defence can also be for instance, an alibi, which challenges the charge that the accused in fact committed the crime (actus reus).

Some well-known examples of defences challenging the intention of the accused at the time he or she committed the crime (mens rea) are intoxication or mental disorder.  Another well-known type of defence is self-defence.

In Canada, self-defence is codified by the Canadian Criminal Code.  The Code sets out the law regarding self-defence.  The law is applied to criminal cases where it is used as a defence.

The Supreme Court of Canada in setting out the Code as it applied to several criminal cases (R. v. Petel, 1994, and R. v. Malott, 1998) noted that there are three elements of self-defence for criminal cases, and in particular for criminal cases where the accused had killed another person in self-defence.  The first element is that there must be the existence of an unlawful assault.  Secondly, there must be a reasonable apprehension of a risk of death or grievous bodily harm.  And thirdly, there must be a reasonable belief that it was not possible to preserve oneself from harm except by killed the adversary.

Although the Supreme Court laid out these elements in the context of where the victim had died, these three elements of the defence of self-defence are often cited in other cases.

Recent criminal cases have also made the suggestion that an “air of reality” must also accompany the argument for self-defence.

Reasonable force is not calculated as an exact measure, as the law makes for allowances in moments of crisis.  For defending property, however, the law has separate rules in the Criminal Code.

3 main criminal offence classifications in Canada

If you've been charged with a crime in British Columbia, which court and how it proceeds depends on the classification of the offence.  The Criminal Code of Canada sets out 3 main offence classifications which are as follows:

1.  Purely summary conviction offence;
2.  Purely indictable offence; and
3.  Hybrid offences.

The summary conviction offences are the most minor, followed by hybrid offences, and then the most serious offences are purely indictable offences.

The majority of criminal charges in Canada (and therefore B.C.) are hybrid offences.  For example, DUI and assault charges are hybrid offences. 

Hybrid offences can proceed summarily (less serious) or by indictment (more serious).  The prosecutor chooses the classification.

To view a detailed compare and contrast table of the 3 main offence classifications, click here.

What must be proved for a criminal conviction in BC

Just because you do the act of a crime doesn't mean you'll be convicted in a BC court.  The prosecutor must prove beyond a reasonable doubt that you also intended to commit the crime.

This means the prosecutor must prove that you (1) committed a crime, and (2) intended to commit the crime.  For example, if you're in a car accident and it's your fault, but you didn't intend to cause the car crash, that isn't enough to be convicted of a crime in BC.  If that was the case, many car accidents would result in criminal convictions.  However, if you crash your car into someone intending to hit them, similar to intending to punch someone, then you could be charged with assault.

That said, and using the car crash example above, the prosecutor (called Crown Counsel in BC) must prove (1) that you crashed your car into a person and intended to crash your car into a person.

Beyond a reasonable doubt is more than just proving something is more than 50 percent likely.  Beyond a reasonable doubt means leaving very little or no doubt in the judge's mind that you (1) did a criminal act, and (2) intended to do the criminal act.

Gordon Dykstra, a criminal lawyer in the firm Dykstra & Company, has over 25 years experience defending people charged with a crime.

Free BC Criminal Law Book

If you've been charged with a crime, you probably need some answers.  Gordon Dykstra, the founding lawyer of Dykstra & Company, wrote "Am I Going to Jail?" for people charged with a crime such as a DUI, assault or any other criminal offence in British Columbia.  This book is available to you at no cost and no obligation.

Am I Going to Jail talks about the consequences of a criminal record and what you might be able to do to avoid a conviction, get a reduced charge, or a lighter sentence.

Your case may be stronger than you think - and that's the point of the book.  Check it out by ordering a the Dykstra & Company homepage - it costs nothing and could help your case.