There is a frequent presumption about the legal definition of self-defence: that the individual who delivers the first blow is always the aggressor. There are many ways in which this may not be true.
You don’t need to take a beating before you can defend yourself. When you are forced to react because you perceive a threat, through words or actions, you may have a valid claim of self-defence regardless of whether you deliver the initial blow.
What you will be judged upon is what you reasonably perceived at the moment you reacted, what occurred prior to your reaction, and whether your reaction was reasonable given the circumstances.
How Does Self-Defence Work in Canada?
Canada’s Criminal Code contains provisions related to self-defence, specifically section 34. Generally speaking, an individual may assert self-defence when:
- The accused reasonably believes that force or a threat of force is being directed towards them or another person.
- The accused acts with the intent to protect themselves or another person.
- The accused’s actions were reasonable in the circumstances.
As stated previously, the law does not view the issue solely based on who delivered the initial blow.
Courts will examine the events leading to the altercation, what each party said or did, the nature of the threat presented, and the reasoning behind the accused’s decision to respond with force.
For someone facing an assault charge, these details can play an important role in determining whether self-defence may apply.
Do You Have to Wait Until Someone Hits You?
No. As mentioned earlier, Canadian self-defence law does not typically demand that you receive a blow before defending yourself.
Think of two individuals confronting one another. One individual lifts their hand, begins to approach you, and states that they intend to hit you. At that point, you may reasonably believe that an impending attack is about to happen, although the other party has yet to physically harm you.
Another scenario exists where a person reaches for something you reasonably believe to be a weapon. If waiting for that weapon to be used puts you in greater jeopardy, it may be unreasonable for you to delay reacting.
Cases involving an alleged weapon can also result in more serious charges. A person facing this situation should speak with an assault with a weapon lawyer about the circumstances surrounding the incident.
Ultimately, it will come down to whether your perception of an impending attack was reasonable based on the factual circumstances you encountered at that particular time.
Simply saying, “I thought he was going to hit me,” may not be sufficient by itself. Other evidence is also crucial.
What Will the Court Consider?
Under section 34, courts consider numerous factors when assessing reasonableness. These can include:
- The nature of the force or threat
- The apparent immediacy of the threat
- Whether alternative methods existed for resolving the conflict
- The presence or absence of weapons
- The physical capabilities, age, sex, and stature of the parties involved
- The history between the parties
- Any past instances of physical force or threats
- The proportionality and nature of the accused person’s response
- Whether the accused knew that the other person had lawful authority
While no single factor determines guilt, each factor can influence the determination of reasonableness.
For example, there may be significant differences between hitting a person once because you reasonably believed they intended to physically injure you and continuing to hit that same person after they are on the ground and no longer appear to represent a threat.
Is Starting an Argument the Same as Starting a Physical Fight?
Not necessarily. Two individuals may verbally spar, shout at each other, or engage in a heated dispute. One participant may then commit an action that leads the other participant to reasonably believe that physical violence is about to occur.
Although participating in a verbal confrontation does not preclude arguing self-defence, participation in initiating or escalating a confrontation may be taken into consideration.
To determine whether self-defence applies to your case, courts review the entire sequence of events leading up to and including the confrontation.
This can become particularly important in domestic assault cases, where the people involved may have a history together and the events leading up to the alleged assault may be disputed.
Can Self-Defence Apply in a Bar Fight?
Bar fights illustrate just how complicated things can get.
Witness testimony may vary greatly regarding who initiated the confrontation. Witness recollections may be affected by intoxication. Security camera footage may capture only partial views of what transpired.
Assume a second person is approaching you aggressively, threatening to cause you harm, and seems prepared to punch you. Before this person punches you, you strike them.
The Crown prosecutor may argue that you assaulted the second person since you punched them first. However, your defence lawyer may argue that you reasonably believed an attack was about to occur and struck the person in order to defend yourself.
Your defence may ultimately depend significantly on the evidence.
What Type of Evidence Supports a Self-Defence Claim?
Evidence in support of a claim of self-defence usually focuses on what occurred in the moments before force was used.
Some types of useful evidence may include:
- Security camera or cellphone video: Footage may show how the confrontation developed and what happened immediately before physical force was used.
- Independent eyewitness testimony: Witnesses may be able to describe threats, aggression, or actions by either party before the incident became physical.
- Text messages and social media: Previous threats or communications may provide context surrounding the confrontation.
- 911 calls: Statements made immediately after an incident may provide evidence about what occurred.
- Medical evidence: Injuries sustained by either party may become relevant when determining what happened.
- Statements to police: Anything the accused says to police may become evidence in the criminal case.
It is also worth noting that anyone charged with an assault should exercise extreme caution when explaining their version of events to police before consulting with a criminal defence lawyer.
When Will a Self-Defence Argument Fail?
Hitting first will not automatically invalidate your ability to raise a defence of self-defence. However, merely being angry, insulted, or offended does not provide justification for using force.
Problems can also occur when additional force is used beyond what is required to respond to an immediate threat.
An example of this distinction would be striking someone to prevent them from attacking you compared with pursuing them after they retreat.
Each case will depend on its unique set of facts. Ultimately, what the accused believed, why they chose to use force, and whether their actions were reasonable under the circumstances will be assessed by the court.
If you have been charged with assault after an incident where you believed you were defending yourself or another person, speaking with an experienced assault lawyer in Brampton can help you understand how Canada’s self-defence laws may apply to your situation.
A. Dhillon Law represents individuals facing assault and other criminal charges in Brampton and throughout Southern Ontario. Contact Akash at A. Dhillon Law to discuss your case.
