CANADA’S SELF DEFENCE LAW

A recent incident that happened last month in Milton, Ontario, where men broke into a house. One of the perpetrators has an illegal firearm. Someone living in the house was attacked , prompting another resident to use a firearm. Several gunshots were fired in the home, assumingly from both parties. One of the perpetrators died from a gunshot. The home dweller who shot his gun was charged with second-degree murder.

Another incident that happened about 2 months ago in Halifax, has the same content of self-defence in Canada. Two men invaded a home, and a resident fatally stabbed one of the them. The stabbing was ruled a homicide, yet no charges have been laid in relation to the death.

People are asking why one charged, and the other not? What are we permitted here in Canada concerning self-defence, especially in a home invasion.

Answering the first question on why one was charged and not the other is n the nature of the weapon used to defend. Canada has very strict gun laws. According to the Firearms Act , the firearm must be stored unloaded, in a safe, and the ammo must be separated. Even a clip cannot have bullets in them. I am assuming that the incident shows that the resident had a loaded gun in reaching distance. I t was not stored properly according to the Canada Law. I am not stating that I agree with the Act, but that is what the law in Canada is.

Sections 34 and 35 of the Canadian Criminal Code state that the person is not criminally culpable while defending themselves or their property, providing the incident meets certain thresholds.

There are basically three strict parameters that define how and when we are permitted to defend oneself, someone else or one’s property, without getting jail time.

The first thing is that a person must have a reasonable fear that they or someone around them is going to be killed or badly hurt to apply self defense. If this is not the case, you cannot use deadly force to defend oneself or others.

The second part is to ask whether the force that was used in the case of self-defense strictly for the purpose of defending oneself or others from a use or threat of force from the assailant.

The third part is to determine if ones actions were considered reasonable. The factors that determine whether or not an act of self-defence was reasonable include, but are not limited to, the following:

-the nature of the threat;

-how the person responded;

-the nature and scale of the person’s response to the use or threat of force;

-how imminent the threat was;

-other available means to respond;

-any weapon involvement;

-the size, age, gender and physical capabilities of the people involved; and

-the relationship between the people involved.

Should the self-defense case end up in the courts, if it is shown there was a “reality of self-defence” or a reasonable possibility of self-defense, then Crown will have to prove “beyond a reasonable doubt” that the person was not acting in self-defence when they used force.

Just claiming “self-defence” does not cut it. A self-defense situation is a dynamic and stressful situation. But that it is all proportional. If someone pushes you and you respond by hitting them, and continue to strike them, or if someone raises their fists at you and you stab them with a knife, that would be unproportional.

What is Defence of Property?

Under section 35 of the Criminal Code:

(1) A person is not guilty of an offence if:

(a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;

(b) they believe on reasonable grounds that another person

1. is about to enter, is entering or has entered the property without being entitled by law to do so,
2. is about to take the property , is doing so or has just done so, or
3. is about to damage or destroy the property , or make it inoperative, or is doing so;

(c) the act that constitutes the offence is committed for the purpose of

1. preventing the other person from entering the property, or removing that person from the property, or
2. preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and

(d)the act committed is reasonable in the circumstances.

Therefore, I would highly recommend that one should judge, quickly of course, the response to using self. In certain situations, using force might not be necessary. If its, for example its simply money a robber wants, it might be handing it over that could be the easiest path. Just think of all the legal ramifications that could happen if you used deadly force. The lawyer fees, potential criminal record, all for your wallet. Of course, if one did feel honestly threatened, then the use of force has more justifications. A home invasion has gotten past the simple mugging on the street, its your own private domain. Be aware that reasonable force must be used, but that does not mean that a person defending himself against attack cannot be expected to weigh to a nicety the exact measure of necessary defensive action.