A national debate and public outcry were recently ignited over Canada’s self-defence laws when a Lindsay man was charged with aggravated assault after confronting an intruder. The intruder broke into his apartment in the middle of the night, armed with a crossbow. The aggravated assault charge has Canadians questioning the boundaries of self-defense laws in Canada and how far someone is legally allowed to go in protecting themselves, their family, or their property.
According to Kingsley Emereuwa, a Criminal Lawyer at Conroy Scott LLP in Sudbury, the issue of self-defence is clearly addressed in Sections 34 and 35 of Canada’s Criminal Code. He says, “The Criminal Code provides that a person is not guilty of an offence if they believe on reasonable grounds that force is being used against them or any other person. If you believe there is a threat of force being made against you, then you have the right to defend yourself.”
Reasonable force is the legal line in self defense
When facing an aggressor, Canadian law does not give a person being threatened a blank cheque to use unlimited force. Your response must be both reasonable and proportionate to the threat at hand. That means defending yourself in a way that matches the danger, without going further than necessary. Emereuwa says, “If you reasonably believe that someone is going to harm you and you use force to protect yourself, that is self-defence. What it does not cover is retaliation, punishment, or seeking revenge. It must be a response to imminent danger. Deadly force is generally not permissible for property defence alone and you must stop using force once the threat is gone.”
Given the physical response to the threat must be reasonable in the circumstances, there are various factors that the court will consider when deciding on whether the force used by an accused against an aggressor is justified. Emereuwa adds, “The factors include the seriousness and immediacy of the threat, whether a weapon was involved, the relationship between the accused and the aggressor, whether the accused had an opportunity to escape, and the type of weapon or level of force used in response.”
The case in Lindsay has shone a spotlight on the fine line between self-defence crossing into excessive force. Emereuwa gives this example. “If someone slaps you and you respond by hitting them in the head with a hammer, and you claim self-defence in court, a court would not likely agree with you. An accused will not get a discharge with that kind of response. There must be proportionality between the force and the threat of force and your reaction.”
Can you protect your property?
You can defend your property in Canada, but under Section 35 of the Criminal Code, you are only permitted to use reasonable and proportional force to do so. This means that you must have reasonable grounds to believe your property is being threatened with entry, theft, or damage and your response must be reasonable given the circumstances.
Emereuwa says, “For example, if a person breaks into your home at 3am and you believe that your life is threatened, you react and you don’t have the ability to escape, the court will take the threat and inability to escape into consideration. Lethal force to defend property is generally not permitted unless there is also a reasonable belief that your life or safety is in danger. This is what the courts will consider in determining whether your reaction was reasonable or not and the proportionality of that action.”
R. v. Mohamed
Self-defence is a carefully measured legal standard shaped by the circumstances of each case. To get a sense for how courts in Canada are viewing cases where an accused is facing criminal charges for injuring or killing an aggressor, we can look to recent decisions
Take the case of Khalid Mohamed who was charged with second degree murder for stabbing another man to death. The question for the court was whether Mohamed acted in self-defence when he stabbed the Steven Burns.
The incident happened near the casino in Thunder Bay. In an attempt to take back property Burns had stolen, Mohamed was struggling with Burns over control of a knife. Mohamed testified that he was “thinking if he gets the knife, I’m dead.” Both men suffered stabbing injuries. Burns’ injuries were fatal. The judge found that Mohamed acted because he was provoked and the emergence of an imminent threat justified self-defence.
Burden of proof
When self-defence is claimed in court, the accused does not carry the burden of proving it. Kingsley Emereuwa says, “Instead, it is up to the Crown Attorney to establish beyond a reasonable doubt that the response was excessive in the circumstances.”
At the end of the day, Canadian law strikes a balance between protection and restraint. It does not expect you to stand by helplessly in the face of danger, but it does require that your response does not exceed the threat. The principle underscores a fundamental truth that self-defence in Canada is not about retaliation, but about preservation.
Kingsley Emereuwa holds a Master’s Degree in International Business Law from Osgoode Hall Law School and in addition to criminal law, he has expertise in immigration and refugee law, family law, and wills and estates.
Contact Kingsley Emereuwa at Conroy Scott LLP at (705) 674-6441 Ext 272, by email at [email protected], or by visiting their website.