Over the years, our office has represented hundreds of individuals who have been charged with crimes of violence. The strategy for each case differs depending upon the factual circumstances as well as the client’s goals. The most common charge is that of common assault pursuant to section 266 of the Criminal Code. The offence of assault involves a non-consensual application of force to another person. As such, the Crown is obliged to prove beyond a reasonable doubt that the force used was not consensual.
This means that consensual fights between adults may make it difficult for the Crown to make out the offence. There are, however, instances where a consensual fight results in injuries that constitute bodily harm. Our Supreme Court has stated that no person can consent to bodily harm, and as such, consensual fights where serious injuries result eliminates this argument. In such cases, Self Defence may be the client’s an only viable route to an acquittal.
Determining whether the accused acted in Self Defence
When the issue of Self Defence is raised, the Court is asked to determine whether the actions of the accused were justified. Before a Court can determine if the accused acted in Self Defence, it must first satisfy itself that the defence has an “air of reality.” This preliminary finding requires that there be some evidence to substantiate each element of the defence.
Once this has been established, the onus then falls to the Crown to prove beyond a reasonable doubt that the accused did not act in self-defence. In order for the accused to be acquitted on the basis of Self Defence, the judge must find that:
a) the accused had reasonable grounds to believe that force or a threat of force is being used against them;
b) the act was committed for the purpose of defending against the threat; and,
c) the accused’s actions were reasonable in the circumstances.
Assessing if the act of violence was reasonable
In assessing whether the act was reasonable in the circumstances, the trial judge will evaluate:
- the nature of the force or threat;
- 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;
- the person’s role in the incident;
- whether any party to the incident used or threatened to use a weapon;
- the size, age, gender and physical capabilities of the parties;
- the nature of the relationship between the parties (including any prior instances of violence);
- the nature and proportionality of the force involved.
In considering the issue of proportionality, the Court must look at the threat of force weighed against the force used to respond. While our Court of Appeal has routinely stated that the defensive force need not be weighed to a nicety, it must be proportionate.
As such, the argument would be unavailable for an accused who is pushed and then responds with deadly force. That said, the use of deadly force may very well be available to a homeowner who encounters armed intruders in his home at 2 o’clock in the morning. In the event that the Crown fails to prove beyond a reasonable doubt that the accused did not act in Self Defence, the act is deemed justified and an acquittal will follow.