What the law says about self-defence

Have you been accused of assault? Were you perhaps countering an attack? If so, it’s important to find out if you could plead self-defence in your case.

Articles 34 (1) and 34 (2) of the Criminal Code specify the relevant facts to evaluate in order to determine whether you can plead self-defence in court.

Article 34 (1) A person is not guilty of an offence if:

they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;

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

the act committed is reasonable in the circumstances.

Factors

Article 34 (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:

(a) the nature of the force or threat;
(b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

How to interpret these Articles

Article 34 (1) (a): This Article refers to reasonable grounds for believing that force is being used. Therefore, it’s a question of analyzing the context of the situation. This criterion relies on an objective analysis of the incident. For example, whether the accused threw a punch in response to a simple push or simply pushed in response to a punch.

Article 34 (1) (b): This Article refers to the purpose of the act. In this case, a subjective analysis is called for. The act must have been committed for purposes of defense, i.e. to protect oneself rather than to get revenge or to attack the other person. This relates to the state of mind of the accused—what he or she was thinking at the moment of committing the alleged act.

Article 34 (1) (c): The questions that are often raised here have to do with the reasonableness of the response in relation to the action. While it isn’t necessary to demonstrate what would have been the perfect or ideal behavior in this situation, the accused must nevertheless demonstrate that he or she acted reasonably.

For example, the following questions may be relevant:

  • Did the accused try to avoid the conflict?
  • Was the accused trying to protect himself or herself from a current or imminent threat?
  • Did the accused employ only the necessary amount of force as required by the situation or was it disproportionate to the attack he or she suffered?
  • Did the accused act instinctively on a decision made in the heat of the moment when he or she felt threatened?
  • How was the accused’s behavior following the incident?

Once the accused has demonstrated that he or she has met the criteria of Article 34 (1) (a) (b) and (c) through the verisimilitude of the evidence submitted, it must then be demonstrated beyond a reasonable doubt that a plea of self-defence would be inapplicable.

As a matter of course, the credibility of the witnesses will then be put to the test as they testify in court.

If the plea of self-defence is upheld…

If there’s any doubt regarding the three elements constituting self-defence in Article 34 (1) (a) (b) and (c), the accused will be acquitted. There are some more complex cases, for example, when the accused has inflicted serious or fatal injuries. We don’t always weigh the intensity of our actions.

It’s a question of the reasonableness of the accused’s reaction. This assessment is all the more difficult because determining the reasonable or unreasonable character of the force employed doesn’t depend on the results of the act of self-defence but rather the intentions of the accused.

In the event that the accused acted reflexively, a plea of self-defence could be entered in court. On the other hand, this defense wouldn’t apply if the accused was reacting to a verbal insult that wasn’t followed by some physical act, as this wouldn’t constitute grounds for an objective belief in the existence of an attack, as envisaged in Article 34 of the Criminal Code.

When it comes to self-defence, it’s a matter of determining whether there’s any reasonable doubt that the accused honestly believed that, under the circumstances, there was no other alternative for fending off the attack, that he or she only employed the necessary force in order to fend it off and that such belief was objectively reasonable given the situation.

Do you need advice for your defense?

If you’re facing accusations of assault and you’re wondering about the possibility of pleading self-defence, please don’t hesitate to contact me. I’m an experienced criminal lawyer who’s particularly rigorous and attentive.

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