Self Defense in Canada

By Morgane Oger

In a world that sometimes seems dominated by prejudice and hatred, understanding your rights to self-defense within the scope of Canadian law becomes a vital tool in safeguarding yourself and communities at risk of violence. This is all the more pressing considering the way marginalized communities are being increasingly targeted because of who they are by populist extreme-right thought leaders and organizers, and now even by political parties.

Photo: Close up of a group of persons in Waterloo at a gathering following the Summer 2023 hate-motivated knife attack at a University of Waterloo Philosophy class on Gender Issues. One person holds a sign with the caption “TRANS PEOPLE DESERVE SAFETY” next to another peson holding a purple banner with the words “SEXUAL ASSAULY SUPPORT CENTRE OF WATERLOO REGION” Image: Justine Rogers – The Community Edition.

The risk of violence is illustrated by a March 2023 Statistics Canada report that states the number of hate crimes reported by police in Canada rose by 72% from 2019 to 2021, the most recent year that statistics are available.

Facing an assault is not just a physical ordeal but a deep psychological trauma. It shatters your sense of safety, ushering in a whirlwind of fear and disbelief, a true test of your inner strength and resilience. In this dreadful moment, every second feels elongated, a cruel reminder of vulnerability and the darker facets of humanity. The aftermath can be equally grueling, leaving scars that demand time and patience to heal. It’s a journey of recovery, showcasing the undeniable resilience within us. My children and I know too much about what assault does, but this piece is not about that but about what your options are when it happens to you.

Today, I’d like to talk about what I have learned over the years working as a human rights advocate about how Canadian Law frames self-defense, dealing with assault in my personal life, and advocating for vulnerable persons who have been victims of vicious assault. I am particularly interested in speaking to those people who might be targeted due to their personal characteristics.

Canada, with its diverse peoples and communities and strong commitment to human rights, has endeavored to establish laws that protect all its citizens from the prohibited harmful actions of others. Our laws are imperfect and are a permanent work in progress, but they are binding unless overturned by a Court.

The right to defend oneself from an unjustifiable assault is enshrined within the Criminal Code of Canada, in sections 34 and 35.

These provisions have been crafted to balance the protection of individuals and the prevention of the misuse of self-defense claims.

Note that I am not a lawyer and that although I have done my best to represent the situation using publicly available material, it is each person’s responsibility to adhere to the Law in the jurisdiction where they are. Please seek advice from a qualified professional. Also, persons involved in a criminal act are not necessarily protected by self-defense principles in the same way persons not involved in a criminal act are.

Please be careful playing around the edges of the Law, its bite can be very painful.

The Foundation: Sections 34 and 35

To fully grasp your rights, it’s essential to first understand the key principles outlined in sections 34 and 35 of the Criminal Code. These sections delineate the circumstances under which a person is considered justified in using force to protect themselves or another person from an assault.

34(1) A person is not guilty of an offence if (a) 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; (b) 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 (c) the act committed is reasonable in the circumstances.

35. (1) A person is not guilty of an offence if (a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property; (b) they believe on reasonable grounds that another person (i) is about to enter, is entering or has entered the property without being entitled by law to do so, (ii) is about to take the property, is doing so or has just done so, or (iii) is about to damage or destroy the property, or make it inoperative, or is doing so; (c) the act that constitutes the offence is committed for the purpose of (i) preventing the other person from entering the property, or removing that person from the property, or (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and (d) the act committed is reasonable in the circumstances.
Sections 34 and 35 of the Criminal Code of Canada address self-defense. The Ministry of Justice of Canada has a detailed analysis here. It is important that subsections 2 and 3 of 34 and 35 set out clear limits when it comes to self-defense in error and involving law enforcement.

First and foremost, your actions of self-defense must be in response to an actual or threatened use of force. You are permitted to use a reasonable amount of force to prevent or repel an attack, with the understanding that what is ‘reasonable’ would depend on the circumstances of each case.

Analyzing ‘Reasonable Force’

But what exactly is considered ‘reasonable force’? This term often seems subjective, but Canadian courts generally consider several factors in determining the reasonableness of the force used, including:

The nature of the force or threat you are facing.
The extent of the force applied in response.
Your role in the incident, and whether you had any other options available to prevent the harm.

Remember, any defensive action should be proportionate to the threat encountered. In other words, the force used in self-defense should not overly exceed the force being used against you.

Protective Action Against Hate-Motivated Assault

In the distressing event where you find yourself facing an assault motivated by prejudice or hatred towards your personal characteristics – be it gender identity, race, sexual orientation, or any other defining feature – it is vital to know how you can legally protect yourself.

These attacks often stem from deep-rooted biases, and defending yourself becomes not only a means to protect your physical self but also to uphold your dignity and human rights.

As someone who has ardently advocated for the rights and protection of marginalized communities, I want to emphasize that your safety always comes first.

While the Law aims to be as inclusive and protective as possible, the reality is that you might find yourself in situations where immediate defensive action is necessary and law enforcement are not nearby to protect you – or worse, not intervening.

In such scenarios, keeping the principle of ‘reasonable force’ in mind, it’s essential to:

Assess the Situation: Evaluate the level of threat and react accordingly. Your response should always be proportional to the threat presented. Are you being threatened or just insulted? Are you experiencing assault or are you in an altercation you started and you can put an end to?
Seek Safety: Whenever possible, try to remove yourself from the situation and seek safety.
Witness Accounts: Encourage witnesses to remember the event accurately as they can be pivotal in validating a self-defense claim.
Report the Incident: Post the incident, it is crucial to report to the appropriate authorities to ensure that such hate-motivated assaults are documented and dealt with appropriately.

Let us all remain vigilant, informed, and ready to protect not just ourselves but also those who might be targeted because of who they are. In the face of people acting on hatred and deeply-held bias, all Canadians acting together are unstoppable. Together, we can show how hope, determination, and empathy keep us all safer.

Too many people have told me that they did not report a threat or an act of violence because they do not believe law enforcement will take action. Too many more have told me they do not trust police. I understand these sentiments. They make sense to me based on my own experiences, and I have also felt them. Still, I personally try to always report such incidents. This helps make sure the incident are recorded and reported in crime data. This data keeps agencies accountable for their results, so please always remember that something not reported can not be acted upon and that we can only make things better by making them visible to everyone.

If you have concerns related to reporting an incident, maybe speak to a friend or trusted person in your community for advice on what to do. Maybe ask to be accompanied by someone.

Our Rights are Our Shield

Knowledge of our rights and the laws governing self-defense in Canada is a powerful shield in protecting yourself and others from hate-motivated violence. It also helps keep our actions defensible and helps prevent escalation.

I firmly believe that equipping ourselves with this knowledge is a step towards fostering a society where every individual can live without fear of persecution due to their personal characteristics.

Sometimes, that knowledge includes the fact that the service of law enforcement is provoded by people, and that among people there will always be some who hold deeply-held biases or who do nor fully understand how oppression and threats to oppressed persons work.

If you find yourself in a situation where violence occurred and where you are being asked questions by law enforcement people after you have had to defend yourself from violence, it is important to remember that the Constable you are speaking to is not there as your friend but as someone with significant power over you.

I’d run it past a lawyer but would say generally bad idea to post it because you have something to lose.

If you are questioned by the police after defending yourself from violence, be very careful with what you say. If this was happening to me, I believe I would limit myself to describing a sequence of events only, and if the assailant is know for their past conduct to mention that.

I have been reminded by a reviewer of this document who I trust that it might be a very good idea to invoke your section 7 charter rights and demand legal counsel before speaking about your actions. I have never needed to do this, but do concur that if I had engaged in self-defense and was being questioned by Constables immediately afterwards this would be a consideration.

Section 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 7 of the Canadian Charter of Rights and Freedoms

Law Enforcement and Violence

It is extremely unlikely someone can justify to a Court their use of force to respond to members of a police force or an agent of a Court using force to perform their duty. In fact sections 34(3) and 35(3) of the Criminal Code of Canada specifically excludes self-defense as a justification for assaulting a person enforcing the law.

It is very important to understand that Law enforcement personnel are sometimes excluded from criminal consequence when using force to do their job. Resisting percieved excesses of law enforcement can only safely be done through the Courts, and although I have been involved in more than one legal proceeding involving significant violence by Law Enforcement personel, I have never personally seen any public outcome beyond a quiet change of employment or retirement. The thin blue line sometimes feels palatable.

Conclusion: A Call for Unity and Strength

In these trying times, where the tendrils of hatred seem to be stretching far and wide and even into Canadian institutions, understanding your rights to self-defense is as vital as ever.

As a community, we must stand united, empowering ourselves and others with the knowledge and tools necessary to protect our rights and our lives.

Together, let us forge a future where no one lives in fear, where the specter of violence based on personal characteristics is eradicated. A future where our diversity is our strength, and where each one of us can exist peacefully, respecting and celebrating our unique identities.

Remember, your safety is not a privilege but a right. Please stay safe, and stay informed.