Many Canadians don’t know their rights with respect to defending themselves if they are threatened with having their possessions taken or with being assaulted. Most of us learn about self-defence rights only from American television dramas or from random reports in the news, which generally gives us inaccurate and conflicting information about our legal rights. In evaluating whether a person’s actions in defending themselves are lawful, the courts assess whether their actions were reasonable under the circumstances leading up to the event.
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.
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 rules governing self-defence.
- 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 for the purpose of protecting or defending themselves or another person, and their actions are reasonable under the circumstances.
- In deciding whether actions are reasonable, courts consider: the type of force or threat; how imminent the threat was and whether other options existed; the person’s role in the event; whether a weapon was involved; the size, gender, age and physical abilities of those involved; any prior history between the parties; whether the response was proportional; and whether the person knew the force against them was lawful.
Defence of property falls under Section 35. A person is not guilty if they have reasonable grounds to believe they are in peaceable possession of property and act reasonably to prevent another person from entering unlawfully, taking the property, or damaging or destroying it.
Although someone has the right to chase a person to get their property back, a private citizen cannot physically harm the alleged thief. You can detain someone who is trespassing or in the act of stealing, but only using reasonable force until police arrive.
The question of ‘reasonable force’ comes down to using no more force than is necessary. In R. v. Szczerbaniwicz, 2010, the Supreme Court of Canada held that a judge must assess whether the force was reasonable under all circumstances, including the accused’s subjective belief about the likelihood of harm and the real facts regarding the need to defend.
In proving a charge of assault, as with any criminal action, the person charged is presumed innocent until the prosecution proves guilt beyond a reasonable doubt. If defence counsel can show the accused had a reasonable belief they would come to harm and acted reasonably to defend themselves, there are grounds for acquittal.
If you are facing assault charges and believe you acted in self-defence, the circumstances of your case matter. Contact the Law Firm of Ted Yoannou for a consultation.