What Is Reasonable Force?

I have a very interesting topic for you today. This is regarding self defense in Canada and what is reasonable force? That’s been a vexing an interesting question and there’s a lot of grey area about how much force you can use to defend yourself when you’re being attacked or there’s a threat of attack. So first of all, we have to look to section 34 of the criminal code for the for the answers to this and the case law of course that interprets it. 

The bottom line though, if I am being attacked or threatened, threatened as well, but I’m being physically attacked. I’m allowed to defend myself and protect myself or another person who’s being attacked, as long as I act reasonably in the circumstances. That’s the basics, the gist of law what you really boil it down to, and you have to use reasonable force. I mean, you can’t use excessive force, beyond self-defense for you’re seeking vengeance on the person and the criminal code under Section 34.2 it talks about a lot of examples like how we assess the reasonableness of your actions. A lot of it is common sense. Did you act reasonably in these circumstances? 

Now I want to take a look at Section 34.2 and go through each factor, I got my criminal code here. So the first thing we have to look at in assessing reasonableness is the nature of the force or threat. Let’s give an example. So let’s say a gun is being used against you well, and you have to defend yourself well, certainly you using a gun back would be a reasonable force, there’s no question or, a knife, for example, to defend yourself. You’re about to be shot. Whereas let’s say you’re in a bar and a person’s grabbing you. It doesn’t make sense to pull out a knife or a gun.

No, obviously that’s not reasonable. The second factor is the extent to which the force was imminent meaning is it happening right then and there. We can’t have someone punch us in the face and then go attack from five minutes later and call that self-defense. In the same factor, were there other means available to respond to the incident other than the use of force? That’s the fact that can be considered as well. 

What was your role in the incident? 

What’s the other person’s role? Maybe you were the aggressor and you promoted this and the opposite optics of it are not going to be good for the judge. You don’t just start pulling out a gun, you know, in a fistfight? Did the other person use a weapon? 

Obviously, if the other person has a gun or a weapon, you can respond proportionately you need to defend yourself or you’re going to die or get seriously hurt.

The size, age, and gender and physical capabilities in the parties are important. Let’s you know if you’ve got Mike Tyson at his peak at a bar, and some guy pushes him on the shoulder and threatens Mike Tyson. Do you really think he has imminent fear and needs to start attacking the guy? No, you probably just deal with it another way. Let’s face it. So gender and size are very important factors to consider. 

We got to look at the nature of the relationship between the people there may be prior threats leading up that night which causes fear, which can prompt the situation so you have to look at that as well. And we look have to look at the communication that night there may have been various threats that night which caused fear which where you need to protect yourself and leading up to an ultimate threat. Don’t forget, you can defend yourself from a threat to a person may be in just front of you and waving a gun at you or waving his or her fist in your face how do you respond to that? 

You know, your proportional response. Now, the next factor is a very important one this is a key one, the nature and proportionality of your response. Proportionality, do we respond in a bar to a push with a gun? No. A knife? No. Do we respond at with a push back and stepping back yourself and creating distance?  Yes. 

You know that you’ve got to apply common sense here. And finally, the final factor is whether you knew that the person had lawful authority to assault you. For example, let’s say you were, an officer is telling you to submit to an arrest well you can’t start saying that’s in self defence. 

So a lot of common sense applies to proportionality, and there’s a lot of grey area. I’ve defended a lot of these cases over the years and I’m going to give you some examples with what may or may not be excessive force will take let’s go to the bar situation because a lot of cases I’ve defended are in bars. 

So let’s say you’re at the bar, and you’re just standing there minding your own business with your significant other and someone gets into an argument with you and they start pushing you and you really have no place to go. And they grab you, well stabbing them with a knife obviously pretty serious you can’t do that you can’t shoot them. Could you grab them yes and you know prevent them from doing this? Yes. If they started punching you could you punch them? Yes. Next step. Let’s say the threats ended. 

Let’s say they punch you and you punch them and now they’re down on the ground and you can get away and there’s no problem. They don’t have a weapon. Well, you can’t sit there and start hammering away on them, maybe they’re unconscious. That’s excessive force, it’s not reasonable in the circumstances. 

Another situation might be let’s say a person pulls a gun on you and you happen to have a gun on you even though that’s illegal. Well, you’d be able to defend yourself you might be charged with other crimes, possession of restricted firearm, carrying a sealed firearm, that carries its own weight but it certainly doesn’t carry a life sentence. And so if a guy threatens to shoot you, you can shoot them. That’s a proportional response. Much like a knife situation. person pulls a knife on you if you happen to have a gun. You could probably use a gun to defend yourself in that situation. But again, you can be facing other charges if you don’t have a licence to carry a gun. 

Very few people do by the way in Canada, we’re not the states. So reasonable force. It’s an interesting concept it’s something we know what when we see I, the Crown has to prove beyond a reasonable doubt in court if you’re charged with a crime, if your defending yourself, that you did not act in self defense. So it has to prove excessive force for example. I’ve defended cases before where the crown was arguing excessive force but let’s face it you know, first of all, there’s case law that says you don’t have to waive to the nicesities to your blows. 

I mean, this guy’s punching me in the face with this force so I can only use this force No, you can punch and it might result in a serious injury even accidentally that’s still not a crime, you’re acting in self-defence. You might even push a person if they die. People fall and hit their head that’s happened before too. That’s still reasonable, as long as proportional, and you’re acting in self defense and everything’s reasonable. It’s a lot of common sense. I’ve argued these in front of juries and judges and they seem to make the right decision about whether it’s reasonable or not. And proportional. Every case is different, of course. 

So I’ve just given you some examples. I’ll give you another example of a case that I once defended it kind of puts it all together. In a fairly recent case which we won, fellas at a party and there was a guy at the party being drunk and acted like an idiot he was telling people he had a gun and “ive got a gun at the party” and kind of acting threatening and everyone’s kind of scared of this guy because he’s a bit of a hoodlum type person looking at the party and threatening everyone. And at the end of the night, he was removed from the party but started punching people at the party and my client who, fairly physical guy, he was concerned about the other people because a couple of women got punched by this drunk, he didn’t want to intervene. 

But he actually wound up going outside because he didn’t, he knew he was a capable fighter my client but he didn’t want to, get involved because he’d heard the guy had a gun now the guys outside and my client just told him to leave and he’s still threatening people and they’re standing about five, six feet apart at the time. And the other guy says, goes like this makes the most with his finger and starts to reach for his waist bed and my client, knowing that he threatened to have a gun and knowing this action, closed the gap immediately and punched him very hard in the face shatter his jaw into bits. We won that case going away. 

It was very clear case of self-defense, it was proportional, he thought the guy had a gun and he was entitled to react in the way he did. There’s an example of proportional force. If my client was a criminal in that instance, could he have pulled out a gun, well that’s another issue but certainly the punch maybe not. 

That’s a different set of facts. But certainly the reaction the way he did to a person that was threatening to use a gun on him was totally proportional. Every case is different. A lot of factors. Fortunately, the parliament has changed laws in about 2012-ish. 

They simplify section 34.1 and 34.2, it used to be so complicated it boggled the mind every time I did a self defense case, re-study the law get it straight, explain to the jury the material was so complicated. The juries never understood it, It’s much more simple now. There’s still some publications of privacy but everyone struggles with first are we acting in self defense for the purpose of protecting yourself, either from punches or threat. The threats to by the way of violence can promote you to do in self defence and is it reasonable in the circumstances, which is a lot of common sense. 

Judges seem to get the right decisions in most cases. And I find our jury system that people get it, they know when somethings excessive, they know when a person acts in vengeance. The guy gives me a slap in the face and I star punching them and the guys unconscious on the floor, we know it when we see it. 

We don’t need some lawyer pontificating to use what the law is. 

There’s another famous dictum about weighing to a nicety. It’s from an old English case. And it’s an interesting case. Detach reflection in the face of an uplifted knife is difficult to achieve basically right. 

You’ve got a knife flashing at you and you’re not sitting there going, oh I better analyze this. No, you react. The adrenaline’s flowing in that moment you have fear and you’re entitled to react, and you’re trying to react proportionately. Take care of the issue, defend yourself and move on. One thing I will say to you guys, especially all the males out there. Try and walk away from these instances, there’s often a way to get out I mean someone pushes you, leave your ego at home. One of two things are going to happen 

I guarantee it. You’re going to get hurt, they’re going to get hurt and someone’s going to get charged it’s probably going to be you. You think you’re a tough guy. So you need to walk away. Leave your check at home. You want to get into fighting join the MMA or something legally in the gym. The people I know who engage in martial arts and MMA they’re very disciplined but they don’t get in fights. It seems to be a lot of wahoo’s who’s at the bars who get into fights. Don’t do that. Anyway, there’s a little bit primer on how you can protect yourself or someone else as well as getting attacked, you’re allowed to use proportional force to protect. 

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