Canadians have a fundamental right to safeguard themselves from threats or force, and this right must be upheld if their defensive actions are reasonable and proportional to the circumstances. Canadians also have a right to prevent another person from entering their property, and to remove that person from their property, when they are not legally entitled to be there. In a home invasion situation, the rights to protect yourself and your property could both be potentially engaged.

Self-Defence in Canada is a nuanced area of law, so it is important to know what you are legally allowed to do to defend yourself and your home when they come under threat. Centrally, however, is that any actions taken beyond what is deemed reasonable and necessary will not be condoned by the law. In essence, you have the right to use force to protect yourself and your home, but only to the extent that is reasonable and necessary.

What is Self-Defence in Canada?

Self-Defence is the act of defending or protecting yourself or other people from imminent threats or force in a way that would be considered criminal if it was not done for the purpose of defence or protection. This definition shifts when discussing threats to property, as instead of “defending” yourself, threats to property allow for “prevention” or “removal” of the person who is seeking to enter, take or damage property.

While highly dependent on the circumstances, self-defence in Canada can include taking down an assailant who is threatening you with a knife, physically restraining a robber who is stealing your expensive jewelry, and, in very limited circumstances, applying lethal force to an individual who is an imminent threat to your life.

Self-Defence

Understanding the Canadian Criminal Code on Self-Defence 

Under s.34 of the Criminal Code, a person is permitted to take reasonable action to protect themselves or others without being guilty of an offence. For a plain-language guide to how this defence works in practice, see Self-Defence Laws in Canada.

Section 34 states: 

(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.

In a home invasion situation, it is important to also be aware of s.35 of the Criminal Code. This provision allows for a property owner to prevent another person from entering, taking or damaging their property in certain situations.

Section 35 states:

(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.

These two provisions are very clear that any person who wishes to defend themselves or their property, must act reasonably.

Potential Legal Consequences of Self-Defence Actions 

If you act in self-defence, or believe you are acting in self-defence, you may still be charged with a criminal offence.

Arguing that you acted in self-defence does not guarantee that you will not be prosecuted for a crime, especially in situations where you used a weapon or have otherwise caused significant bodily harm to another person. The Criminal Code is clear that a person who is claiming that they acted in self-defence will be required to show that they acted reasonably in the situation, both in assessing the threat to themselves and their property, and in carrying out the act of protection or prevention.

So, if you strike a person that you believe was entering into your home unlawfully, police may choose to charge you with assault. Whether or not you will be able to claim that your actions were in self-defence will be dependent on the situation. Anyone who has been charged with a crime, and who believes they acted in self-defence, will benefit from an experienced and practiced lawyer advocating on their behalf. An experienced lawyer will be able to tell your side of the story, which can lead to a Crown or judge agreeing that you acted in self-defence.

Self-Defence and Home Invasions in Canada

What is Considered Reasonable Force?

The Criminal Code provides a list of factors that a court must consider in determining whether a person acting in self-defence was acting reasonably. These factors include the relevant circumstances of the person and the other involved parties, but also include the following:

  1. the nature of the force or threat;
  2. 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;
  3. the person’s role in the incident;
  4. whether any party to the incident used or threatened to use a weapon;
  5. the size, age, gender and physical capabilities of the parties to the incident;
  6. 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; and any other history of interaction or communication between the parties to the incident;
  7. the nature and proportionality of the person’s response to the use or threat of force; and
  8. whether the act committed was in response to a use or threat of force that the person knew was lawful.

Reasonableness is not a standard that is set in stone. It is in the discretion of a judge to determine whether you acted reasonably in any given circumstance, but the above factors help guide their decision making.

Examples of Lawful Self Defence 

It is impossible to state with certainty whether a person’s self-defence argument will succeed in a court of law. However, there are situations where a court will likely find that a lawful self-defence occurred.

A common situation for home invasions involves an intruder entering your home with a knife. If this intruder attempts to attack you, and you knock the intruder unconscious before he can stab you, a court will likely find that you were acting in self-defence. However, if you proceeded to kick the intruder several times while he was unconscious, a court may be less convinced that you were acting in self defence by kicking him. Whether a person is acting in self defence or not is a highly fact-specific inquiry.

What is Not Allowed?

In Canada, self-defence is not available as a defence in all cases. There are certain situations where an individual will be prohibited from claiming that they acted in self defence:

  • Prohibited Items: Many Canadians believe that they can always carry a weapon for the primary purpose of self defence. This is not true. There are certain items which are generally prohibited. These include brass knuckles, tasers, pepper spray and knives.

Under s.88(1) of the Criminal Code, a person is not able to possess a weapon for a dangerous purpose. If an individual carries a dangerous weapon for the purposes of possibly using it on another human, even in self-defence, the court will likely find that they did not act in self-defence.

  • Legal Alternatives for Personal Safety: Self-defence should be an act of last resort. If there were alternative actions that you could have taken, rather than applying force to an intruder or assailant, a court may find that you were not acting in self-defence. Availability of legal alternatives for personal safety are one of the factors that a court will consider in determining whether you acted reasonably. In a home invasion situation, you should look for and take opportunities to escape harm and phone the police, as a court may see these as reasonable alternatives to using force on an intruder.

Frequently Asked Questions 

Yes, in certain situations it is legal to fight back in self-defence. Under s.34 of the Criminal Code a person is permitted to take reasonable action to protect themselves or others without being guilty of an offence. However, to be considered acting in self-defence, you will have to show that you reasonably believed that you were under threat of force, you acted for the purposes of defending yourself, and you acted reasonably in the circumstances.

No, you are not permitted to carry a knife for the specific purpose of self-defence in Canada. Under s.88(1) of the Criminal Code, a person is not able to possess a weapon for a dangerous purpose. The law is that Canadians cannot be permitted to carry a concealed weapon to defend themselves, as doing so runs the risk of encouraging a “vigilante attitude” that could ultimately increase violence in society.

Likely not. Under s.88(1) of the Criminal Code, a person is not able to possess a weapon for a dangerous purpose. If the court finds that you possessed your firearm for the purposes of self-defence, you will not be entitled to claim self-defence. However, there are certain situations where a court may find that you were acting in self-defence if you possessed the firearm for an alternative purpose, and your actions were otherwise reasonable in the circumstances. If you have shot an intruder in self-defence, you should immediately contact a lawyer who can assist you in determining whether you can claim self-defence.

No. Pepper spray is generally illegal for personal protection in Canada and is classified as a prohibited weapon under the Criminal Code. Pepper spray designed to be used for the purpose of “injuring, immobilizing or otherwise incapacitating any person by the discharge” is illegal in Canada. Only law enforcement officers may legally carry or possess it.

If you have been arrested for acting in self defence, you may feel compelled to tell your side of the story immediately. We strongly recommend exercising caution. Even when you believe that you are only providing information that will show you acted in self-defence, you may accidentally divulge information that the police or the Crown Prosecutor could use to convict you. You have the right to remain silent, and you should use it.

In these situations, it is recommended that you retain an experienced lawyer who can tell your side of the story for you.

Final Thoughts

Self-Defence is a complicated area of law in Canada, especially when it comes to an intruder in your home. In a home invasion situation, the right to protect yourself and your property could both be potentially engaged. If your defensive or preventive actions are deemed reasonable under the circumstances, a court will find that you acted in self-defence. However, any actions taken beyond what is deemed reasonable and necessary will not be condoned by the law. In conclusion, you have the right to use force to protect yourself and your home, but only to the extent that is reasonable and necessary.

If you have been charged with an offence because you acted in self-defence, Strategic Criminal Defence is here to help. The lawyers at Strategic Criminal Defence have experience representing people who have been charged with a crime after an act of self defence, and they are ready to assist you with navigating the complexities of your charges.