Self-defence is not denied to a person who breaks the law or conducts themselves in a dangerous manner. The fact that the accused creates the danger or provokes the victim, however, is relevant & will be examined.

1. Website - www.brianrosslaw.com Phone No. - (416) 658-5855
Can Self-Defence Be Denied to a Person
who Breaks the Law or Creates the
Danger in the First Place?

2. Website - www.brianrosslaw.com Phone No. - (416) 658-5855
Until recently, the law of self-defence in Canada was thoroughly confusing.
Several sections of the Criminal Code addressed the issue of self-defence, and it
was often the case that more than one of those sections was applicable to a given
fact situation. Now, the self-defence provisions are codified in section 34 of
the Criminal Code. Despite this, there have been questions about whether the
accused can lawfully defend themselves when they are the ones that created the
dangerous situation in the first place.
The following analysis is for informational purposes only. For legal advice relating
to your matter, please contact Brian Ross Criminal Lawyer in Toronto to schedule
a consultation.
Section 34 of the Criminal Code is reproduced here:
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;

3. Website - www.brianrosslaw.com Phone No. - (416) 658-5855
(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.
Factors
34(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.
No defence
34(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

4. Website - www.brianrosslaw.com Phone No. - (416) 658-5855
commits the act that constitutes the offence believes on reasonable grounds that the
other person is acting unlawfully.
How do these provisions factor into a case where the accused causes a dangerous
situation? In 2021, the Supreme Court of Canada addressed the issue in R. v.
Khill and last week, they were addressed again by the Ontario Court of Appeal
in R. v. Sparks-MacKinnon. In Khill, the Court noted that where the accused
played a central role in creating a highly risky scenario, it was incumbent upon the
trial judge to consider whether the accused’s actions eliminated “all other means to
respond with anything less than deadly force.” The Court noted that the judge must
consider the accused’s role throughout the incident to the extent it informs the
reasonableness of the act underlying the charge. In Sparks-MacKinnon, the Ontario
Court of Appeal held that this standard of reasonableness is “overarching in nature
and must be judged holistically and objectively” and that reasonableness “includes
concepts like provocation and unlawfulness but is not limited to or circumscribed
by them. While aggressive, unlawful, or provocative conduct remains highly
probative and can support a finding of unreasonableness under the new regime, it
is open to a trier of fact to find otherwise”. The judge in Sparks-MacKinnon found
that the accused bore “significant responsibility for bringing about the
circumstances that led to his need to defend himself” but could not conclude
beyond a reasonable doubt that his shooting of the deceased was unreasonable.
In conclusion, self-defence is not denied to a person who breaks the law or
conducts themselves in a dangerous manner. The fact that the accused creates the
danger or provokes the victim, however, is relevant and will be examined in the
“reasonableness” analysis.
Find us on Google, Facebook and Brownbook.
Source - https://www.brianrosslaw.com/can-self-defence-be-denied-to-a-
person-who-breaks-the-law/