When can I legally defend myself?

In May 2009, the owner of a Toronto grocery store captured a man who had entered his store a second time, after the man was observed stealing from the store just an hour before (with video footage providing evidence of the initial theft). The store owner, David Chen, along with two relatives, chased the man from the store, grappled with him and tied him up, then locked him in their delivery van which was nearby. Witnesses called police to report the event, and when police arrived at the scene, they charged the three men who captured the alleged thief with kidnapping, carrying a dangerous weapon (a box cutter), assault and forcible confinement. The kidnapping and weapons charges were subsequently dropped.  

The man charged with the theft plead guilty in August 2009 and received a 30 day jail sentence, but the three family members who apprehended him faced charges of forcible confinement and assault.  The trial, R. v. Chen et al., 2010, received national coverage. In fact, many Canadians expressed sympathy for the grocer who was portrayed by defence as a hard-working new immigrant preyed upon by thefts which were reported but seemingly not acted upon by Toronto police. One of the key issues in the case is that, under the Criminal Code, a property owner can use reasonable force to defend their property only if the other person is in the act of taking or damaging the property.  However, when Chen apprehended the man, the latter was actually not in the process of stealing. 

The fact that the thief, in cross-examination, admitted both to his earlier theft and that he was returning to steal more, was a boon to the defence.  Also lending sympathy for the defence is the prosecution’s failure to provide any evidence that the police took action in response to previous reports of theft of Chen’s store, such as police logs of complaints, response time to said logs, actions undertaken and so on.  The circumstances leading to this incident appeared to be one where Chen’s community felt vulnerable due to perceived police inaction, and felt at least some contempt for laws that were supposed to protect them. It was suggested that this led the Chen family to fill the void in the ineffectiveness of law enforcement.  The judge’s conclusion in the trial was that there was reasonable doubt concerning the events of the day and therefore, the charges against the three men were dismissed.

In March 2013, the Citizen's Arrest and Self-defence Act, (Bill C-26), came into effect in Canada, partly in response to the publicity on the issue of defence of property that resulted from the Chen arrest.  The purpose of the Act is to simplify the legislative text that defines regulations governing self-defence and defence of property under the Criminal Code (sections 34-42).   Concerning self-defence, the key issue to be considered is whether the accused’s actions were reasonable under the circumstances, particularly with respect to having a reasonable belief that they were being threatened with harm.  Also considered is whether a person took reasonable measures to defend themselves in the context of the perceived threat.   

The Criminal Code section 34 defines the following rules governing self-defence.

1. A person is not guilty of an offence if:
   • They have reasonable grounds to believe that force or a threat of force is being used against them or another person;
   • Their actions are being committed for the purpose of protecting or defending themselves or another person;
   • Their actions are reasonable under the circumstances
2. In order to decide whether a person’s actions are reasonable, the courts will consider the relevant circumstances of the actions and persons involved, based on the following factors:
   1. What type of force or threat was involved;
   2. How imminent was the use of threat, and were there other methods available to respond to the potential use of force;
   3. What was the person’s role in the event;
   4. Did any of the involved parties use or threaten to use a weapon;
   5. What were the size, gender, age and physical abilities of the persons involved;
   6. Are there any previous circumstances, such as a prior threat of force, between the persons involved that have potential relevance to the incident and/or is there a history of communication or interaction between them;
   7. Was the person’s response to the threat or use of force proportional;
   8. Did the person know that the threat or use of force against them was lawful?
3. Subsection (1) is not applicable if the use or threat of force was lawful and done while administering the law, unless the person had reasonable grounds to believe that the threat against them was unlawful.

The regulations governing defence of property fall under Section 35, as follows..

1. A person is not guilty of an offence if:
   1. They have reasonable grounds to think that they are in peaceable possession of a property or are lawfully assisting a person believed to be in peaceable possession.
   2. They have reasonable grounds to believe that another person is:
      1. About to enter or entering the property unlawfully.
      2. About to, or in the act of taking the property
      3. About to, or in the act of damaging or destroying the property
   3. Their actions are being committed for the purpose of:
      1. Preventing the other person from entering the property or removing them from it 
      2. Preventing the other person from taking, damaging or destroying the property
   4. The person's actions were reasonable undere the circumstances.
2. Subsection (1) is not applicable if the use or threat of force was lawful and done while administering the law, unless the person had reasonable grounds to believe that the threat against them was unlawful.
3. Subsection (1) is also not applicable if the person entering the property is authorized to do so by law unless the person defending the property has reasonable grounds to believe the other person is acting unlawfully. 

Although someone has the right to chase a person to get their property back, a private citizen cannot physically harm the person that is allegedly stealing.  Similarly, you can detain someone who is trespassing or in the act of stealing, but only by using reasonable force to do so, until police arrive at the scene.  However, the challenging aspect of this is that it may be difficult to detain someone without doing them any harm at all if they attempt to get free or fight back, so the courts must examine all the facts of the event in order to make a ruling on whether a person was using reasonable force.

The question of what is ‘reasonable force’ in defending ourselves comes down to the standard of using no more force than is necessary.  In R. v. Szczerbaniwicz, 2010, the Supreme Court of Canada held that, in order to assess the reasonableness of force, a judge must decide whether the force used was reasonable under all circumstances, which includes the accused’s subjective belief regarding the likelihood that they will come to harm as well as the real facts regarding the need to defend.

For example, in a 2014 trial, R. v. Deluney, a man was acquitted on the charge of assault against his own brother because the judge ruled that his actions were reasonable under the circumstances.  The alleged assault began when a man asked his brother to watch his house while he was out of the province and gave his brother the keys to his home.  The man later decided that it was a bad idea to trust his brother with his home and he went to the latter’s house to retrieve his keys.  An argument ensued between the brothers and the accused alleged that he thought his brother was going to assault him, so he grabbed his brother by the coat and threw him down to the ground.  After a scuffle between the brothers, the man left with his keys.  Photographs showing red marks on the neck of the alleged victim were presented as evidence by the Crown, but this did not contradict the testimony of the accused brother. The judge believed the accused’s recount of the events because he presented his story clearly and reasonably, with no indication of exaggeration.  By contrast, the judge was dubious of the complainant's testimony that he did nothing to move towards his brother despite the fact that they were both very upset and angry at the time.

In proving a charge of assault, as with any criminal action, the person who is charged with the offence is presumed to be innocent until the prosecution has proven beyond a reasonable doubt that the accused committed the offence with which they are being charged.   Because the onus of proof is always on the Crown, if defence counsel can show that the accused had a reasonable belief that they would come to harm and acted reasonably to defend themselves based on this fear, there are grounds for an acquittal on the charge of assault.