- 34. (1) A person is not guilty of an offence if
- (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
- (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
- (c) the act committed is reasonable in the circumstances.
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
- (a) the nature of the force or threat;
- (b) 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;
- (c) the person’s role in the incident;
- (d) whether any party to the incident used or threatened to use a weapon;
- (e) the size, age, gender and physical capabilities of the parties to the incident;
- (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
- (f.1) any history of interaction or communication between the parties to the incident;
- (g) the nature and proportionality of the person’s response to the use or threat of force; and
- (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
Marginal note:No defence
(3) Subsection (1) does not apply if the force is used or threatened by another person for the purpose of doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
Sections 27, 34(1), 37, 39, 40, 41, 43 and 44 of the Criminal Code of Canada permit the use of reasonable force to prevent offences. However, s. 26 holds anyone so authorized criminally responsible for using excessive force. The determination of what steps or actions were reasonable in any particular situation is highly contextual requiring an assessment of mixed facts and law. The case law has held that no one facing imminent harm is expected to judge to “a nicety” the amount of force required. Notwithstanding the aforesaid, this can not justify the use of great force where lesser force would resolve the problem. The Courts will assess the proportionality of the force used and even if it was necessary in the circumstances. This would include removing yourself from a potentially violent situation before an assault occurs, verbal de-escalation, posturing, and physically defending oneself.
As stated above, consent may be a defence. Consent may be expressly given or implied. Often consent is implied; and this may be inferred from the factual circumstances surrounding the offence once the evidence at trial is adduced by the Crown Prosecutor or extracted by the defence lawyer in cross examination.
When you shake someone’s hand or pat a fellow employees back, generally there is an implied consent to do so. When consent is fraudulentlyprocured or produced by forceful measures the consent is vitiated. Furthermore and as stated above, no one may consent to being killed or seriously injured. Where a person intends, or actually causes, significant harm or death, consent is not an available defence as per the case law and the Criminal Code of Canada.
F. Penalties for Assault
In the event that you are found guilty, the range for penalty turns on a number of sentencing factors pursuant to section 715 of the Criminal Code. Generally, the Court will review any previous related criminal convictions and the degree of harm inflicted on the complainant prior to passing sentence. Accordingly, the matter may result in an absolute discharge, a conditional discharge, a probation order conditional sentence, a short to long jail term. It is clear that these matters must not be taken lightly. The entry of a criminal record may have dire consequences that affects other facets of your life.
If you have been charged with assault under section 266 of the Criminal Code of Canada, it is important to seek legal advice immediately to be informed of your rights and to form a litigation plan. Often the difference between winning and losing often depends on the first few steps one takes in criminal proceedings prior to being charged or shortly after being charged by the police.
Call 403-585-1960 or 1-888-695-2211 for a free initial consultation from one of our lawyers who have the experience to guide you through this process.
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