Self-defence in Canada: When lethal force could be legal — and when it isn’t

A group of men allegedly broke into the home of 22-year-old Arimian of Milton, Ontario, just after 5 a.m. on Sunday. according to the police.

Mian claims through her lawyer that the men who broke in, one of whom has been charged with unlicensed possession of a firearm, attacked her mother. It was then that Mian allegedly shot one of them.

Police said there were several gunshots in the house and one of the men who entered the house was killed.

Mian has been charged with second-degree murder and is currently on trial.

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The incident occurred less than two months after Canada’s Self-Defense Act was reported in Halifax. Police said two men were breaking into the house when a resident stabbed one of them, fatally wounding him.

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The stabbing was ruled a homicide, but no charges have yet been filed for the death.

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Learn about Canada’s self-defense laws

A high-profile burglary and subsequent death has raised questions about the legal remedies Canadians have if someone breaks into their home.

According to two criminal lawyers, the answer to that question is more complicated than blockbuster movies and popular crime TV shows.

“People get themselves into trouble by treating these legal issues like black and white,” said Ottawa criminal defense attorney Michael Spratt.

“If someone breaks into your home, that doesn’t necessarily give you the right to use force on them — and certainly not lethal force.”

Does Canada have the right to self-defense?

American citizens have different self-defense laws depending on the state, but Canadian criminal law applies nationwide, as do the parts of the code that deal with self-defense.

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Canada does not have what is called a “Castle Doctrine”. This is a principle of common law in some US states that gives people the right to use reasonable force, including lethal force, to defend their home against intruders.

But that doesn’t mean Canadians are helpless.

Articles 34 and 35 of the Penal Code establish that a person is not criminally responsible Protect yourself or your property when an incident meets certain thresholds.

When can Canadians use force to defend themselves?

There are three strict parameters that define when and how Canadians can protect themselves, someone else, or their property.

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“The first thing a person needs to benefit from that kind of defense is a reasonable fear of imminent death or serious bodily harm from someone else,” says criminal attorney Solomon Friedman. Told.

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In other words, a person must have a reasonable fear that he or someone around him will be killed or seriously injured. cannot be used.

The self-defense section of the Criminal Code then asks whether the force used was deployed “with the purpose” of defending or protecting oneself or others “from the threat of its use or force.”

If you get past those two hurdles, Friedman said, “Then look at the rationality of your power.”

“And that’s where things get complicated. How do you decide if your actions are reasonable?”

What is “reasonable” power?

In 2012, the Conservative government decided to help clarify what constitutes “reasonableness” in the context of self-defense. They have collected various elements of case law that judges have used in the past to determine what is “reasonable” and have incorporated them all into criminal law.

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The result is a “full list of factors” for determining whether self-defense is reasonable, Friedman said.

those factors Including but not limited to:

  • nature of force or threat
  • The degree to which the use of force was imminent and whether there were other means available to deal with the possibility of the use of force;
  • the person’s role in the incident
  • Whether the parties to the incident used or threatened to use a weapon
  • The physique, age, sex, and physical ability of the parties to the incident
  • the nature, duration and history of the relationship between the parties to the case; This includes any previous use or threat of force and the nature of that force or threat.
  • History of interaction or communication between parties to an incident
  • The nature and proportionality of an individual’s response to the use or threat of force
  • Whether the act committed was in response to the use or threat of force known to the person to be lawful

These factors suggest that, for example, if a home intruder is a small, unarmed 15-year-old boy and the occupant is a well-built bodybuilder, the use of force in self-defense would not be considered reasonable. No, Spratt said.

“I also have to look at my role in the case,” he said.

“If I provoke you or break into your house and you fight back with force, can I claim self-defense and fight back with force? Probably not, because Because I am playing an active and illegal role in agitating the situation.”

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Their history is another factor. For example, if a person advocating self-defense acts out of revenge, it is not considered rational, but other factors, such as domestic violence, influence a person’s beliefs about the rationality of the use of force. there is a possibility.

Criminal law does not compel Canadians to “exercise extreme caution” or respond to threats with exactly the same amount of force.

“We understand that self-defense is a dynamic and stressful situation,” Friedman said. It should be, but it doesn’t have to be meticulously measured.”

Winning a self-defense lawsuit in court

Freedman said that if the defense were successful in raising the so-called “realities of self-defense”, meaning that there was a “legitimate possibility of self-defense”, the responsibility would shift to the king.

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The King must prove “beyond a reasonable doubt” that the person was not acting in self-defense when the force was used.

“Thus, the court must deny it and prove beyond reasonable doubt … it must prove failure in any of these three steps. It was not intended to protect itself, or the force used was unreasonable,” Friedman said.

“They must prove beyond reasonable doubt that any one of them is lacking. At least one of them.

However, it may take a long process to get to that point.

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In the aftermath of the incident, police must make a decision as to whether there are “reasonable or credible grounds to believe that a crime was committed,” Friedman explained.

“Whenever a murder occurs, there are usually reasonable and probable grounds for believing that the crime was committed.”

Freedman added that because self-defense tests are so complex, police “tend to leave the evaluation of self-defense rights to the king and the courts.”

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Canada also allows bail for all crimes, but first and second degree murder charges must be tried by a High Court judge. The crown must show why it shouldn’t.

Canadians denied bail may have to wait a long time before being able to prove themselves in court.

In Canada, a trial is not considered unreasonably delayed for up to 18 months if the hearing is held in a provincial court or 30 months if the hearing is held in a superior court.

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However, one of the factors considered in bail hearings is the strength of the royal family’s claims. A strong self-defense case could help ensure that the person spends several months at home awaiting trial, rather than in pretrial detention, Friedman said.

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“What we don’t want is someone who is presumed innocent . . . serve a significant amount of time in pretrial detention and then be acquitted when the case wasn’t so strong in the first place,” the criminal defense attorney said. rice field.

“There is no doubt, then, that the argument is made that a strong self-defence claim is a weak criminal case.”

Overall, Canadians who find themselves in a situation where they feel the need to defend themselves should follow a basic rule of thumb.

“It can be hard to know where that line is, but you have to know it’s that line.”

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