You have the right to protect yourself, within limits

You have the right to protect yourself, within limits

By Matt Deshaye

A high-profile case in rural Alberta has raised questions about citizens’ rights to self-defence. In March 2020, two men stopped their truck on a public road near a farmer’s property. The landowner called his son and told him to bring a gun because he was concerned they were there to steal property.

Shots were fired and the two men were killed, with the father and son claiming they acted in self-defence. A jury was not convinced. The son was convicted of second-degree murder and manslaughter for firing the gun and his father was convicted of manslaughter in the deaths.

Let’s be clear. While the law discourages people from taking the law into their own hands, citizens are allowed to defend themselves. However, there must be a tangible threat and the force to counter that must be reasonable in the circumstances. Any defensive action must stop once the attacker backs down, as no one is legally permitted to use more force than is necessary. 

Many variables come into play

A Canadian’s right to self-defence is clearly articulated in the Criminal Code. Section 34 (1) states that a person cannot be found guilty of an offence if they believe on reasonable grounds that force was about to be used against them by another person. In that situation they are allowed to respond with force, provided it is “reasonable in the circumstances.”

In accordance with section 34(2) of the Criminal Code, 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.

The defence of property is addressed by s. 35 of the Code, which states that people are allowed to take defensive action if they “believe on reasonable grounds” that another person is about to enter their property with the intent of causing damage or committing a theft.  And again, the Code reminds people that the self-defence action must be “reasonable in the circumstances.”

Steps taken to protect rural residents

In 2019 the Alberta legislature passed the Protecting Law-abiding Property Owners Act, “strengthening protections for law-abiding Albertans and their property to help combat rural crime.”

The new rules are intended to protect property owners from civil liability for injuries to criminal trespassers. They also strengthen the legal rights of farmers and ranchers when dealing with “harassment and occupations by protesters, which are actions that risk introducing disease and threaten the welfare of animals.”

Government information adds, “It is important that property owners remember that they can still be held criminally responsible for their actions and should call law enforcement to deal with trespassers.”

The maximum fine for trespassing was increased to:

  • $10,000 for a first offencs
  • $25,000 for subsequent offences, as well as possible prison time of up to six months
  • $200,000 for corporations that help or direct trespassers

People feel they need to protect themselves

According to a May 2022 media report, members of a Calgary Facebook group focussing on women's safety were asked if they armed themselves for protection. Roughly two-thirds of nearly 500 respondents said they did.

“There are hundreds of sexual assaults every year in Calgary, ranging from groping to armed, physical attacks,” the story states. “In 2021, there were 744 sexual assaults against adults reported to Calgary police, with 699 of those offences resulting in minor or no physical injuries to the victim.
“Thirty-eight sexual assaults were carried out with weapons or threats, or caused bodily harm,” it adds. “There were also seven offences that police categorize as the most severe, resulting in wounding, maiming, disfiguring or endangering life. All seven targeted women.”

The report notes that more than two-thirds of the assaults were against females, usually by someone they knew.

When asked what items they carry for protection, the list included hairspray, specialized keychains and knives. The article quotes a Calgary police spokesperson as noting, “If the object that you're carrying is intended to cause harm to another individual and is not used as a typical tool, then you can be caught and charged with carrying a concealed weapon.”

Put away the pepper spray

In 2021 a former Alberta justice minister asked Ottawa to legalize pepper spray, also known as mace, for self-defence purposes.

"Albertans need to be able to defend themselves," he wrote. "Vulnerable people should be able to feel safe by carrying pepper spray."

That request was turned down, a decision supported by the Alberta Association of Chiefs of Police. In a joint statement, they said that allowing individuals to carry pepper spray could lead to "unintended consequences … an increase in use for criminal purposes."

The Firearms Act outlaws the use of pepper spray by civilians, stating that charges can be laid if a person uses a device “for the purpose of injuring, immobilizing or otherwise incapacitating any person by the discharge of tear gas, Mace or other gas, or any liquid, spray, powder or other substance that is capable of injuring, immobilizing or otherwise incapacitating any person.”

Call us for assistance

If you have been charged with a crime but feel you were acting with your rights to defend your property, yourself or others, contact us for a free consultation. We want to hear what happened so we can build a defence that shows the court that your actions were reasonable in the circumstances.