Most people instinctively know that they have the right to defend themselves if they are being attacked. But few understand the nuances and limitations of the right to self-defence. What exactly does the law allow? And how can self-defence be argued in court?
In the following blog, we will explore the right to self-defence in Canada. We’ll outline the legal foundations of the defence, explain how it can be proven in a court of law, and examine three cases in which self-defence was successfully established.
The Legal Framework for Self-Defence
The legal framework for self-defence in Canada is established under section 34 of the Criminal Code. The section outlines the three conditions under which an accused person is not guilty of an offence if they act to defend themselves or another person:
- Belief of threat: The person must believe, on reasonable grounds, that either force or the threat of force is being used against them or another person.
- Purpose of defence: The act committed must be for the purpose of defending or protecting themselves or another person.
- Reasonableness of the act: The act must be reasonable in the circumstances.
But what does “reasonable” mean in this context? To answer this, section 34(2) provides nine factors for courts to consider when assessing the reasonableness of a person’s actions:
- The nature of the force or threat.
- Whether the use of force was imminent. Were there other means available to respond?
- The defendant’s role in the incident. Were they the instigator?
- Whether any party used or threatened to use a weapon.
- Characteristics of the parties, including their size, age, gender, and physical capabilities.
- The historical relationship between the parties to the incident. Was there any prior threat of force between the parties?
- Previous interaction or communication between the parties.
- The nature and proportionality of the person’s response to the use or threat of force. Was the degree of force used excessive?
- Whether the act was in response to the use or threat of force that the person knew was lawful (e.g., police making an arrest).
This non-exhaustive list of factors shows that the concept of “reasonableness” in self-defence claims is multifaceted and context-dependent. Each case must be carefully assessed on its own merits.
Proving Self-Defence in Court: The “Air of Reality” Test
A person who raises the defence of self-defence in court must prove that their claim has an “air of reality.” For there to be an air of reality, self-defence must appear viable. Only then can it be advanced before a judge or jury.
Once this threshold is met, the defence may proceed and the burden of proof shifts to the Crown, which must then disprove the self-defence claim beyond a reasonable doubt.
The Acquittal of Khalid Mohamed
The right to self-defence was in the spotlight in early 2025 in the high-profile acquittal of Khalid Mohamed, a drug dealer from Toronto. Mohamed was accused of murder in the 2021 fatal stabbing of Steven Perry Burns. He was initially charged with first-degree murder, but that charge was later reduced to second-degree murder. Mohamed was ultimately acquitted of the crime by Justice Danial Newton of the Ontario Superior Court.
According to Mohamed’s testimony, Burns and two other men robbed him at knifepoint. Mohamed proceeded to chase them down, leading to a physical altercation with Burns. Mohamed stabbed Burns twice during the fight, and Burns died of his wounds. Mohamed argued that he acted in self-defence because had he not gotten control of the knife, he would have been stabbed himself. The judge accepted Mohamed’s claims and acquitted him.
R. v. Khill and the Role of the Defendant
The self-defence provisions in section 34 were clarified by the Supreme Court of Canada in the 2021 decision of R. v. Khill. In this case, the accused, Peter Khill, shot and killed Jon Styres, an Indigenous man whom he believed was breaking into his truck and was armed with a gun. Khill pleaded self-defence and was acquitted at trial. But the acquittal was overturned by the Ontario Court of Appeal, which ruled that the trial judge failed to instruct the jury to consider Khill’s “role in the incident” as required under section 34(2). The Supreme Court upheld the appeal decision, stressing that the reasonableness of the act must be understood in the context of the entire incident. This reflects a broader interpretation of self-defence.
R. v. Hodgson and the Use of Force
Another high-profile self-defence case, R. v. Hodgson, dealt with the use of force in self-defence. In 2017, Daniel Hodgson was involved in an altercation with Bradley Winsor at a house party in Nunavut. Hodgson put Winsor in a chokehold, which led to Winsor’s death. Hodgson was charged with second-degree murder and claimed he acted in self-defence.
At trial, the judge accepted Hodgson’s self-defence argument and acquitted him. The acquittal was appealed but ultimately reinstated by the Supreme Court of Canada. The Court highlighted that the trial judge had correctly assessed the reasonableness of Hodgson’s use of force in self-defence according to section 34(1) of the Criminal Code.
Final Thoughts on the Right to Self-Defence
The right to self-defence in Canada is a fundamental aspect of the legal system. It enables individuals to protect themselves and others from harm, provided they are acting within the legal boundaries. As the above cases illustrate, applying the right is not straightforward; it requires a nuanced and context-specific analysis of the circumstances, including the nature of the perceived threat, the characteristics of the parties, and the proportionality of the response. Each case ultimately turns on its own unique facts. The “air of reality” test ensures that self-defence claims are grounded in solid evidence, while the assessment of reasonableness ensures that the self-defence is justified.
As criminal law continues to evolve, Canadians must understand their rights and the legal implications of their actions. Knowing how the law of self-defence works can mean the difference between a conviction and an acquittal.
Contact Hicks Adams in Toronto for Trusted Advice on Self-Defence, Murder, and Manslaughter
Self-defence cases turn on fine legal distinctions, and a misunderstanding of the law can have serious consequences. If you are facing criminal charges or have questions about whether self-defence may apply to your situation, obtaining experienced legal advice early is critical. The top-tier criminal defence lawyers at Hicks Adams can assess the facts, explain how section 34 of the Criminal Code applies, and help you understand your options before the matter proceeds further. To book a free consultation, please contact us online or call 416-975-1700.
