• Robson Crim

The Boundaries of Self-Defence Laws - Megan Simpson

R v Ross[1] deals with the complexities of Canadian self-defence laws. The facts of the case showed that on April 27, 2019, Ross became involved in an altercation with the three complainants. According to the evidence, at some point during the altercation, the accused stabbed all three complainants. The accused was subsequently charged with three counts of aggravated assault. Testimony was presented which supported the fact that prior to the stabbing, the exchanges between the accused and the complainants were of an aggressive nature. It was concluded that the accused either brought his knife out right after the altercation started or the knife was out throughout the whole altercation, and the accused had the opportunity to leave prior to stabbing the complainants. The evidence was also found not to support a finding that the three complainants were ever fighting the accused in a three-on-one situation. The accused’s friend, who it was argued may have been defended by the accused, came to the accused’s aid and was quickly knocked out by one of the complainants. Trial evidence was also found not to support a finding that the accused was acting in response to the violence faced by his friend or any other perceived threat there may have been to his friend.

The trial judge found that there was some air of reality to the defence of self-defence, thus, it was put to the triers of fact. However, the ultimate ruling was that the stabbing was not a reasonable use of force to be applied in reaction to a pushing, fighting, and bickering disagreement. The findings did not show that the force used by Ross was reasonable in response to the threat posed by the complainants at the time the stabbing occurred. The judge found that, under the circumstances, a knife was not a reasonable mode of self-defence for the accused to resort to. Apart from the accused’s friend and one of the friends of the complainants, all the men involved in the altercation were of similar size and stature. The similar size and stature of the complainants and the accused was listed as part of the reason why the judge found that the use of a knife was unreasonable when fighting three unarmed opponents. The claim of self-defence was ultimately rejected, and the accused was convicted on all three counts of aggravated assault.

The purpose of the criminal law in Canada is to maintain a just, peaceful, and safe society.[2] The nature of self-defence laws in Canada has changed greatly since 2012. Self-defence used to require that an accused use force that was proportionate to the force being used against them.[3] However, current legislation suggests proportionality should only be a factor to consider in determining if the force used by an accused was reasonable.[4] The law now only requires that an accused reasonably believed that there was a threat of serious violence to themselves or another, that the actions the accused took were for the purpose of defending themselves or another against the threat, and that the prescribed use of force was reasonable in the situation.[5] These changes have been subject to much controversy, with one critic comparing the current law to Florida’s (often considered egregious) stand your ground laws.[6] The bounds of the current self-defence laws and what can be considered reasonable were tested in R v Ross.

I am in complete agreement with the decision reached in R v Ross based on the findings of fact. To reach a just decision, a court needs to appropriately balance the multiple interests that are at stake in a criminal trial.[7] On one side, it is important to consider the speed at which situations like the fight between Ross and the complainants can escalate to a point where one is no longer capable of defending themselves or others. On the other hand, there needs to be serious limitations put on the speed and reasoning for individuals to justly escalate violence in the name of self-defence. When an accused resorts to the use of a potentially deadly weapon while actively fighting with a group of three men of similar stature to themselves, the weight of these competing interests needs to be delicately balanced, as both sides are deserving of significant consideration. The fact that the law no longer requires strict proportionality, in my opinion, adequately speaks to the consideration that needs to be directed toward the speed at which situations can escalate. Thus, decisions in self-defence cases should be aimed at applying limits to what can be classed as “reasonable” in a way that ensures the integrity of self-defence laws is maintained, while also ensuring the law is not overbroad and breaching what can be considered “just.”

If a person were able to respond to any threat of violence with maximum force retaliation, our society would surely become anything but just, peaceful, or safe. If one could successfully invoke self-defence when they utilized significant force simply because they feared themselves, even if this fear is reasonably held, to be in a situation where the altercation could reach a point where such force would be reasonable, then the law would fail to adequately balance the competing interests at stake. While it is true that, in this case, the situation could have escalated to a three-on-one where a weapon such as a knife may have become reasonable to utilize for self-defence, the evidence was not found to show that the altercation ever reached such a point. One has to look no further than to Ross’s friend who was knocked unconscious after two blows to see how fast one can become incapacitated in situations like this. However, if we allowed self-defence to be too hastily invoked as reasonable on the basis of what the situation may have escalated to, then the bounds of the defence would reach too far. Of course, I don’t think one should need to be stabbed or severely beaten before they resort to the use of a weapon to attempt to even a fight. However, one should have to exercise a high-degree of discretion before resorting to escalated levels of violence. In this case, I do not see there being reasonable grounds that would suggest a threat that would require the use of a knife as a response was imminent enough to justify utilizing such force at the point the knife was used by the accused. Without a requirement of proportionality, limiting reasonableness in self-defence cases is all the judicial system has left in their toolbox to maintain a just society with regard to this area of the law.

Ross was far from a clear-cut case; this was not a case where someone attempted to invoke self-defence after resorting to an extreme level of violence in retaliation to being pinched by someone smaller than them. This stabbing occurred within the context of a heated altercation between multiple men. However, the findings of fact showed that the knife was used before any threat of serious danger could be properly and reasonably feared to the extent that would justify repeatedly stabbing one’s opponents. The knife was also found to have possibly been used on one of the complainants when the accused already had them in a headlock. A knife has the potential to be a deadly weapon especially when it is wielded erratically and repeatedly. Reasonableness should and does consider the form of force used by the accused in comparison to the form and extent of the threat posed by the complainants. In Ross, the threat faced did not call for the use of a deadly weapon.

Some people may object to the sentiments that I have expressed in this blog. The concern I foresee is that if it is not reasonable to resort to escalated force in a violent situation where there is one versus three opponents, then when could it be reasonable? The answer is simple: it would be reasonable if there were one versus three attackers. If the three complainants approached the accused with threats and violence as three men of similar stature to the accused, I would not agree with a judgment that was against a finding of self-defence. However, the finders of fact determined that this was not how things happened in Ross.

This case may not necessarily test what falls within the boundaries of what can be classified as a reasonable application of force when claiming self-defence, but rather, it can be said that this case helps to define these boundaries themselves. In the interest of achieving a just, peaceful, and safe society; I believe that the judgment reached in this case was the correct decision. Legal decisions are never easy to make, nor are the answers usually clear. The judiciaries need to be able to balance the competing interests that operate in the judicial system, and R v Ross, in my opinion, achieves this balance.

[1] R v Ross, 2021 MBQB 113 [Ross]. [2] Public Prosecution Service of Canada, The Federal Prosecution Service Deskbook (2008), s 1.2. [3] Noah Weisbord, “Who’s Afraid of the Lucky Moose? Canada’s Dangerous Self-defence Innovation” (2018) 64:2 McGill LJ 349 at 353. [4] Criminal Code, RSC 1985, c C-46, s 34(2)(g). [5] Ross, supra note 1 at para 29. [6] Weisbord, supra note 3 at 349. [7] Alan Young, “Fundamental Justice and Political Power: A personal Reflection on Twenty Years in the Trenches” (2002) 16:2 SCLR 121 at 133.

Check out the Robson Crim MLJ
  • Facebook Basic Black
  • Twitter Basic Black