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

Click to play video: 'Police charge occupant of home after he allegedly shot intruder during home invasion'
Police charge occupant of home after he allegedly shot intruder during home invasion
WATCH: Police charge occupant of home after he allegedly shot intruder during home invasion – Feb 21, 2023

It was just after 5 a.m. ET on Sunday when a group of men allegedly broke into the house where Ali Mian, a 22-year-old resident of Milton, Ont., lives, according to police.

Mian, through his lawyer, alleges the men who broke in — one of whom has since been charged with unauthorized possession of a firearm —  attacked his mother. It was then that Mian allegedly shot one of them.

Police say there were multiple gunshots fired within the home, and one of the men who entered the home died.

Mian was charged with second-degree murder and is now awaiting trial.

The incident comes less than two months after Canada’s self-defence laws made headlines in Halifax. Two men were invading a home, police allege, when a resident fatally stabbed one of them.

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The stabbing was ruled a homicide — but no charges have yet been laid in relation to the death.

Click to play video: 'Learning about self-defence laws in Canada'
Learning about self-defence laws in Canada

The high-profile home invasions — and subsequent deaths — have prompted questions about what force Canadians can legally use when someone invades their home.

The answer to that question, according to two criminal lawyers, is more complicated than blockbuster movies and popular crime television shows can make it seem.

“People get into problems where they treat these legal issues as black and white,” said Michael Spratt, a criminal defence lawyer in Ottawa.

“If someone’s breaking into your house, that doesn’t give you the right, necessarily, to apply force to them — and certainly not to apply lethal force.”

Is there a right to self-defence in Canada?

While American citizens have different self-defence laws depending on the state, Canada’s Criminal Code applies across the country — as do the parts of the Code that deal with self-defence.

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Click to play video: 'Kyle Rittenhouse trial: Teen argues self-defence as case takes an unusual turn'
Kyle Rittenhouse trial: Teen argues self-defence as case takes an unusual turn

Canada does not have what’s known as the “castle doctrine,” a common law principle in some U.S. states that gives people the right to use reasonable force — including deadly force — to keep themselves safe from an intruder in their home.

That does not mean, however, that Canadians are without recourse.

Sections 34 and 35 of the Criminal Code establish that a person is not criminally culpable while defending themselves or their property — provided the incident meets certain thresholds.

When can Canadians use force to defend themselves?

There are three strict parameters that define how and when Canadians are allowed to defend themselves, someone else, or their property, without facing time behind bars for it.

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“The first thing that is required in order for a person to benefit from that kind of defense is a reasonable fear of imminent death or grievous bodily harm from somebody else,” said criminal lawyer Solomon Friedman.

In other words, a person must have a reasonable fear that they or someone around them is going to be killed or badly hurt. If that is not the case, you cannot use deadly force to defend yourself.

The self-defence section in the Criminal Code then asks whether the force that was used was deployed “for the purpose” of defending or protecting yourself or the other person “from that use or threat of force.”

If you pass these two hurdles, Friedman said, “we then turn to the reasonableness of your force.”

“And that’s where things get complicated. Because how do you determine whether or not your actions were reasonable?”

What is 'reasonable' force?

In 2012, the Conservative government decided to help clarify what constitutes “reasonableness” in a self-defence context. They collected the various common law factors that judges had used in the past to help determine what is “reasonable” and put them all into the Criminal Code.

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The result was “a whole list of factors,” Friedman said, to determine whether or not an act of self-defence is reasonable.

Those factors include, but aren’t limited to:

  • 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 to the potential use of force
  • the person’s role in the incident
  • whether any party to the incident used or threatened to use a weapon
  • the size, age, gender and physical capabilities of the parties to the incident
  • 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
  • any history of interaction or communication between the parties to the incident
  • the nature and proportionality of the person’s response to the use or threat of force
  • whether the act committed was in response to a use or threat of force that the person knew was lawful

According to these factors, the use of force in self-defence would not be considered reasonable if, for example, the home invader was a small, unarmed, 15-year-old boy and the resident was a hulking bodybuilder, Spratt said.

“You also have to look at your role in the incident,” he said.

“If I provoked you or if I have broken into your house and then you respond with force to me, can I respond with force to you, claiming self-defence? Probably not, because I have an active and unlawful role in sort of instigating the circumstances.”

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Click to play video: 'After Halifax homicide results in no charges, what constitutes self-defence?'
After Halifax homicide results in no charges, what constitutes self-defence?

The history between the two people is another factor. If the person claiming self-defence acted out of vengeance, for example, that isn’t considered reasonable — but other factors, Spratt said, such as domestic abuse, could influence a person’s belief about the reasonableness of their use of force.

The Criminal Code doesn’t force Canadians to “measure to a nicety” or respond to a threat with the exact same amount of force.

“We understand that self-defence is a dynamic and stressful situation,” Friedman explained. “At the same time, (if) someone raises their fists at you, you can’t shoot them in the face. So the force has to be proportional, but it doesn’t have to be measured to a nicety.”

Winning a self-defence case in court

If the defence successfully raises what’s known as “the reality of self-defence,” meaning they show there is a “reasonable possibility of self-defence,” Friedman said the onus then shifts to the Crown.

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The Crown will have to prove “beyond a reasonable doubt” that the person was not acting in self-defence when they used the force.

“So it is something that the court has to negate and prove beyond a reasonable doubt … that it fails on any one of those three steps: either there wasn’t a reasonable fear of death or grievous bodily harm; or the force used wasn’t for the purpose of defending themselves; or the force used wasn’t reasonable,” Friedman said.

“They have to prove beyond a reasonable doubt that one of those things is missing. At least one of those things.”

Getting to that point, however, can be a long process.

In the aftermath of an incident, police have to make a decision about whether there are “reasonable or credible grounds to believe that the offense has been committed,” Friedman explained.

“Any time there’s a homicide, there’s generally reasonable and probable grounds to believe that an offence has been committed.”

The test for self-defence is so complicated, Friedman added, that the police tend “to leave that assessment of self-defence up to the Crown and the courts.”

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And while bail is available for every offence in Canada, first and second-degree murder charges have to be heard by a Superior Court judge — and they carry a reverse onus, meaning the person has to show why they should be released, rather than the Crown having to show why they shouldn’t.

Canadians who are denied bail could have a long wait before they can prove themselves in court.

A trial isn’t considered unreasonably delayed in Canada until 18 months if it’s heard in provincial court — or 30 months if it’s heard in superior court.

Click to play video: 'William Sandeson claims he killed Taylor Samson in self-defence'
William Sandeson claims he killed Taylor Samson in self-defence

One of the factors taken into consideration at bail hearings, however, is the strength of the Crown’s case. A strong self-defence case could help ensure the person spends their months awaiting trial at home, rather than in pretrial detention, according to Friedman.

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“What we don’t want is for someone who is presumed innocent … to serve a significant time in pretrial detention, only to be acquitted when the case was never very strong to begin with,” the criminal lawyer said.

“So certainly an argument that that is going to be made is that a strong self-defence case is a weak Crown case.”

Overall, Canadians who find themselves in a situation where they feel they need to use self-defence should follow a basic rule of thumb: “Your actions need to be reasonable and proportionate,” Friedman said.

“While it can be difficult to know where that line is, you have to know that that is the line.”

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