Documentation:Torts/Self-defence
Self-defence
Self-defence is a complete defence to intentional tort liability that is "usually pleaded as a defence to a battery action where the defendant has struck the plaintiff in response to an attack or perceived attack by the plaintiff".[1]
Elements of the defence
Self-defence recognises the right someone has at common law to defend themselves "against either a threatened or an actual attack from another ... and is limited by the necessity to ward off the danger of such an attack."[1] Once the danger passes, the defence can no longer be invoked – it does not serve to permit a "counter-attack".[1]
| Elements of the defence of self-defence[2][3] |
|---|
| 1. The defendant was justified in using force against the plaintiff to ward off plaintiff's assault or battery; |
| 2. The defendant's use of force was not unreasonable in the circumstances. |
Unreasonable force: The defendant loses the protection of the defence if they use "unreasonable force" in protecting themself from the plaintiff.[1] Unreasonable force is when a party "exceeds the boundaries of the necessary defence and uses more force than was needed to ward off the attack".[4] If a party "uses more than reasonable force, he himself may be liable for battery".[1]
Mistake: An honest and reasonable mistake of fact does not negate the invocation of self-defence. Although tort law generally does not excuse mistakes, a party can claim self-defence if they were reasonably mistaken about the threat the plaintiff posed. If the plaintiff's conduct was objectively threatening, the defendant can be justified in countering the perceived threat.
Revenge: Revengeful actions cannot be justified by the defence of self-defence: "If the defendant is proved to have been attacking or retaliating or revenging himself, then he was not truly acting in self-defence. Evidence that the defendant tried to retreat or tried to call off the fight may be a cast-iron method of casting doubt on the suggestion that he was the attacker or retaliator or the person trying to revenge himself. But it is not by any means the only method of doing that."[5]
Defence of others
The defence of defence of others is analogous to the defence of self-defence.
| Elements of the defence of defence of others[6] |
|---|
| 1. The defendant was justified in using force against the plaintiff to protect another from the plaintiff's assault or battery; |
| 2. The defendant's use of force was not unreasonable in the circumstances. |
The defendant must have a "reasonable belie[f] that intervention is justified and that the person being aided could have had a legitimate claim for self-defense."[7] The harm inflicted must be done with "a reasonable and proportionate amount of force."[7] In order to claim this defence, the defendant "must have physically witnessed the attack, rather than merely heard about it."[7]
Mistake: In Gambriell v. Caparelli, the Court held that "where a person is intervening to rescue another holds an honest (though mistaken) belief that the other person is in imminent danger of injury, he is justified in using force, provided that such force is reasonable; and the necessity for intervention and the reasonableness of the force employed are questions to be decided by the trier of fact."[8]
Criminal law
Self-defence and defence of another are also defences in criminal law under section 34 of the Criminal Code. Given the doctrinal similarities, courts may find cases in the criminal jurisdiction of assistance when considering self-defence in the context of tort law.[9]
Discussion questions
- Read J. Randolph's article on the United States 'state your ground' laws (§6.4.4). These laws seems to create a defence even when it would otherwise be reasonable to back off and defuse the situation or when the use of force is disproportionate. How are these laws different or similar to self-defence laws and principles in Canada?
Quiz
- ↑ 1.0 1.1 1.2 1.3 1.4 Linda D. Rinaldi, ed., Remedies in Tort, looseleaf (Toronto: Carswell, 1987) vol. 1 at 2-30 to 2-31 cited in Buchy v. Villars [2009] BCCA 519 (§6.4.2) at para 10.
- ↑ Friedmann v. Thomson, 2010 BCCA 277 at para 10, citing Mann v. Balabass, [1970] S.C.R. 74.
- ↑ Mathieson v Aiken, 2023 BCSC 535 at para 41.
- ↑ Louis T. Visscher, "Justifications an Excuses in the Economic Analysis of Tort Law" in Sabiha Khanum, P., eds., Economic Torts, (Hyderabad: The Icfai University Press, 2009) at page 20.
- ↑ R v. Debbie Bird, [1985] EWCA Crim 2 (§6.4.3) at para 18.
- ↑ Gambriell v. Caparelli, 1974 CanLII 679 (ON CC)(§6.5.1) at para 15.
- ↑ 7.0 7.1 7.2 "Self Defense, Defense of Others, and Intentional Torts". FindLaw. Thomson Reuters. 29 March 2017.
- ↑ Gambriell v. Caparelli, 1974 CanLII 679 (ON CC) (§6.5.1) at para 22.
- ↑ Gambriell v. Caparelli 1974 CanLII 679 (ON CC) (§6.5.1) at para 21.