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Céline Dostaler
Canadians have a right to self-defence, within reason
A Crown attorney made the right call in July by dropping second-degree murder charges against a Milton, Ont., man who shot and killed an intruder. It all comes down to what is reasonable self-defence in the circumstances.
According to a news report, five armed suspects entered a home uninvited. They were masked and carrying weapons and items for restraint including zip ties and ropes.
“Two of the intruders physically harmed [his] mother,” the story states.
The five were confronted by the occupant, who is a registered firearms owner, and several gunshots were fired within the home. One of the intruders was killed. His body was “found in the bathroom in the mother’s bedroom … on the floor, police located a loaded 9 mm handgun,” the story adds.
When police arrived, one man was arrested and charged with breaking and entering and unauthorized possession of a firearm. Three others fled the scene.
‘No reasonable prospect of conviction’
The story notes the charge against the homeowner was dropped by the Crown since there was “no reasonable prospect of conviction” given the defence of self-defence.
That defence is contained in s.34 of the Criminal Code. It states that “a person is not guilty of an offence if:
- 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;
- 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
- the act committed is reasonable in the circumstances.”
Those last four words are key in determining when self-defence is justified. To help courts reach that conclusion, the Code lists nine factors to consider. These include the nature of the force or threat, the extent to which the use of force was imminent and whether there were other means available to respond.
Any time self-defence is argued, it always comes down to the question: What would a reasonable person do in that circumstance?
My client argued self-defence
I defended a woman in a self-defence case. She had told a man she did not want to see him that night. He came to her rural house regardless. When he arrived, she tried to shut the door on him but he forced his boot into the opening, preventing her from locking him out. She feared he was angry and was going to hit her, or worse.
Panicked, she grabbed a kitchen knife and jabbed at the door frame. She cut him in three places, on his pinkie finger, his foot and his knee.
Perhaps she should have called the police but she did not have a cellphone handy. Since she was in a rural area, the police response would not have been immediate in any event.
Were her actions reasonable self-defence? I argued they were but the judge disagreed, he did not believe that she was in imminent harm. He felt her use of the knife was inappropriate in the circumstance. However, despite being found guilty of assault causing bodily harm and assault with a weapon, my client was given an absolute discharge.
Other cases of self-defence
In the Milton case, a man was at home with his mother when armed intruders broke in. They faced the prospect of imminent harm, so he was justified in using as much force as was reasonably necessary to protect himself and his mother.
This incident is similar to a case I discussed in a blog post in January. It revolved around a home invasion in Halifax, where two men unlawfully entered a home in the early evening. They were confronted by two male occupants and in the ensuing struggle, one of the home invaders was fatally stabbed.
Even though the intruder’s death was ruled a homicide by the Nova Scotia Medical Examiner Service, no charges were laid.
According to a news report, a police spokesperson explained why.
“Is it considered self-defence? … that term is a difficult thing to consider,” he said. “What our investigators need to do is look at the evidence before them, gather up all the information they have and determine whether or not charges would be appropriate. And in this case, at this time, our investigators are not considering any charges.”
I also discussed a home invasion in Nova Scotia in that post. In that incident, two residents of a home were tied up and threatened at gunpoint by three home invaders. One of the victims managed to grab a shotgun from an assailant and he chased the men out of the house, firing two rounds and hitting one in the leg. The other resident followed his friend outside with an illegally possessed rifle and fired two 10-round clips at the fleeing attackers, hitting one in the back.
Because he shot someone fleeing the property, the man was charged with attempted murder and eight other offences. He pleaded guilty to two weapons charges and received a one-year conditional sentence. Weapons charges were laid against the other resident but were later dropped.
As I noted in January, once the home invaders were repelled from the property, the two men lost their self-defence privileges. They were no longer in danger, so firing at the fleeing men resulted in criminal charges.
Contact me for legal advice
The legal right to self-defence hinges on what is reasonable in the circumstances. The courts and Crown attorneys often wrestle with this issue. If you or a family member are facing charges and you believe you acted in self-defence, call me for a free consultation, in French or English.
