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Assault

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Self-defence

A person is justified in using force to defend himself against an unlawful assault provided he did not provoke the assault and the force he uses is not meant to cause death or grievous bodily harm. The defence may be available even if the assailant is killed. Provocation consists of conduct intended to provoke an assault. The force used must be no more than necessary to enable him to defend himself.

How much force is excessive? The courts take a tolerant approach recognizing that a person defending himself against attack cannot be expected to weigh to a nicety the exact measure of necessary defensive action. As a U.S. court once put it: "Detached reflection cannot be demanded in the presence of an uplifted knife."

A person acting in self-defence against an unlawful assault is justified in killing or grievously injuring his assailant if he is under a reasonable apprehension of death or grievous bodily harm from the assault and he believes on reasonable grounds that he cannot otherwise preserve himself from harm.

A person may be acting in self defence even though no assault actually takes place provided he reasonably, albeit mistakenly, believes that one is taking place. Also, recall that an assault can take the form of a threat to apply force where the person threatened believes on reasonable grounds that the individual making the threat has the present ability to carry it out. In one case, a murder conviction was overturned where the killer believed that the victim was reaching behind his back for a knife. Although no knife was found, the killer interpreted the victim's reaching motion as an assault, an incipient knife attack.

Perhaps the most controversial defence to a charge of assault is that available under section 43 of the Criminal Code to a parent who spanks or beats his or her child. Known as the corporal punishment defence, it was upheld recently as constitutional by the Supreme Court of Canada. (See news story.)

The defence justifies the hitting of a child by way of correction provided the force used is reasonable under the circumstances. The defence can also shield from criminal liability a teacher who restrains a pupil or uses force to remove a disruptive child from the classroom. The child must be capable of appreciating correction; the defence does not avail in an assault against a child under 2 or a mentally challenged child. As the assault must be for discipline, a smack delivered only in anger or frustration is not covered by the defence.

Where the defence is raised at trial, the Crown must call evidence to satisfy the court beyond a reasonable doubt the force used was not for the purpose of correction or that it was excessive.

In its recent ruling upholding the corporal punishment defence, the Supreme Court of Canada set limits on its use:

• Corporal punishment of teenagers is impermissible. It achieves only short-term compliance and carries with it the danger of alienation from society, along with aggressive or otherwise anti-social behaviour.



• Corporal punishment using objects such as belts, rulers, etc., is potentially harmful both physically and emotionally and cannot be tolerated.



• Corporal punishment should never involve a slap or blow to the head.



• Corporal punishment which causes injury is child abuse.

Disclaimer: The material on this site is not intended as legal advice. It merely conveys general information on legal issues commonly encountered by persons facing criminal charges in Canada. If you are charged with an offence, you should contact a criminal lawyer.