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.