How far can you go to defend your yourself and your home?

Your home is your castle. You would do whatever it takes to protect yourself, and your loved ones from an intruder. But in so doing, could you actually find yourself on the wrong side of the law?

In January, 2005, a man and woman were sleeping in bed in Calgary when two intruders entered their home. A fight ensued between the homeowner and the intruders. When it was all over, one intruder was seriously injured, the other was dead. Could a charge of manslaughter be justifiably laid against the man who fought off his attackers?

The Canadian Criminal Code authorizes people to use as much force as necessary to protect themselves and their property. However, that force must be the minimum amount necessary if at all possible. For example, if the intruder is merely at your window and he opens the window a bit, this doesn’t mean that you can pull out a shotgun and blast him away. If however, he was a gun in his hand and it appears to you that he is aiming it at you, then you can blast him into eternity.

Chris Levy, associate dean of law at the University of Calgary has said; "For hundreds of years, the law said that your home was your castle."

The Current Canadian Criminal Code provisions covering self-defence, exist to ensure that reasonable force in protecting oneself is adhered to. To put it bluntly, you're not entitled to go ape if someone breaks into your home but at the same time, if you fear for your safety of yourself and others in your home because the person has a knife in his hand or if someone is pouring gasoline on the floor of your home, then you can use deadly force if it you feel that it is necessary---which of course it will be necessary. Sometimes however, excessive and/or deadly force isn’t really necessary.

Three good examples of this are what took place many years ago in Toronto. In one case, during one night, a number of intruders broke into a home in which there lived a fairly large family. The family fought the intruders and one of the intruders had his eyes gouged out of his head by several members of the family. Several years later, a youth broke into a house in Hamilton and was seen by the next door neighbour leaving the house with stolen goods in his arms. He got his gun and shot the youth in his back as he was climbing over the back fence of his neighbour’s property. A robber held up a gas station in Toronto and as he was fleeing, the attendant pulled out a rifle from under the counter and shot the fleeing robber in the back. The robber died hours later in a hospital.

Consider what recently occurred in the state of Texas. Two illegal immigrants broke into a home while the homeowners were away. A neighbour called the police and then told the police that he was going to shoot them. He shot both burglars to death with his shotgun as they were leaving the house. A grand jury decided not to indict him.

No charges were laid by the police in these four instances. Police and prosecutors are often loath to pursue such charges when intruders or robbers are wounded or killed by their victims. However in the four instances I gave you, if the police had laid charges, the matters would have gone to trial and there may very well have been some guilty verdicts given.

In the case where the intruder’s eyes were gouged out, he was obviously no danger to the inhabitants immediately prior to his eyes being gouged out since a number of the family members had him pinned to the floor. They were not at that moment, defending themselves but instead, they were wreaking vengeance on the intruder. In the case of the neighbours shooting the burglars who had broken into the houses next to theirs, the neighbours with the guns were not in danger of their own lives. With respect to the attendant at the gas station, he too was not in immediate danger.

However, many years ago in British Columbia, two men waited in the bushes along a path in which a third man was expected to walk on. When the third man was near, they shot him to death. When the two men were tried for his murder, it was established by others and the two accused that the third man had previously threatened the two men with their lives telling them that one day, he would shoot them both dead. The court was satisfied that the men were in mortal fear for their lives and although they weren’t in immediate danger at the time of the shooting, they had reasonable reason to believe that their deaths would come about very soon and unless they took definite steps to stop the other man from killing them, they would die. They were acquitted of the shooting to death of the third man.

I should add that asking for the assistance of the police wasn’t an effective way to deal with that situation then.

I remember many years ago when I was living with my girlfriend in my home and she was pestered by an old boyfriend who kept following her wherever she went and punching her. He was arrested and brought to court and immediately released with a warning not to bother my girlfriend. He even spent 30 days under observation and then released. He was arrested and released four times, each time with the same warning. The attacks continued. He even tried to break into my home late at night to get at her. I called the police and he was released in less than an hour. Then he called at four in the morning yelling on the phone, “I am out again. You thought they would hold me, didn’t you.”

I can appreciate why the two men who had been threatened with death by the man they shot didn’t bother to call the police again. There is no doubt in my mind, (nor was there any doubt in mind of the judge) that the man who was shot, if not taken out by his proposed victims, would have shot them to death sooner or later when they wouldn’t be expecting it. That is why one should never threaten to kill anyone. The threat may be taken very seriously and the proposed victim may use deadly force to stop you even if you didn’t really mean that your threat should be taken seiously.

Most people live in a home. Jurors probably know what the law is with respect to self-defence, but they may decide at the end of the day that, “Damn it, it's my right to kill someone who breaks into my home.”

Even judges have been known to reveal such a heartfelt attachment to the sanctity of one's home. In 1997, a judge who acquitted an Ottawa man of murder after he shot an intruder several times invoked the old "home is your castle" common law, saying the accused "acted reasonably in these circumstances."

I would be remiss if I didn’t mention that many years ago, a law was passed in one of the southern states in the U.S. that if you burglarized a house at night and were caught and tried, you would be subjected to the death penalty.

One doesn't need to face off intruders in his own home to invoke similar empathy when pleading self-defence.

Twenty years ago, Calgary drug store owner Steven Kesler shot a robber as he was fleeing the scene; a jury later acquitted him of murder. Kesler became something of a folk hero ---the story made worldwide headlines and a TV movie was made about the famous case.

Anand, a University of Alberta law professor and co-author of the book Principles of Criminal Law, defends the restrictions put on self-defence in Canadian law. He said, "I'm not sure people would approve of a black-and-white law that if someone breaks into your home, you can have cart blanche to kill them." But he also agrees that the combination of emotionality and the greyness of what constitutes reasonableness often make for one hard-to-stick charge.

Anand does acknowledge that such elements as time of day and location --- "when someone shows up in your bedroom in the middle of the night, it's reasonable to think you might be in great danger" -- have a bearing on such cases. "I can kill someone if I believe that person is going to kill me," he says, referring to the "reasonable apprehension" clause of self-defence when the victim causes the death of their attacker. He added, "I could be mistaken, but as long as my mistake is reasonable, I can use self-defence."

The laws of self-defence in our country are unduly technical and unduly complex.

In December 2007, a man was shot in the head in a reported home invasion in Malvern and died in hospital. Police said that 25-year-old Fitawrari Lunan was the intended victim of the incident inside a home on Wilcox Creek Pathway near Morningside and Sewells Road. "I describe it as some sort of a beef," Toronto Police Insp. Dave Saunders said. "It's targeted, and I'd say that the suspects knew who they were looking for.” Lunan was taken off life support when his condition reportedly deteriorated a day later.

Obviously, if the victim was armed when the armed intruders broke into his house, he would have been justified in killing them. In the Canadian Criminal Code, it states;

34(1) Everyone who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

s.37(1) Everyone is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.

(2) Nothing in this section shall be deemed to justify the wilful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force was intended to prevent.

s. 265(1)(b) of the Code namely, an attempt or a threat by act or gesture to apply force to another person if the person doing so has, or causes the other to believe upon reasonable grounds that the person attempting or threatening has, the present ability to effect that purpose.

In a case where someone is being assaulted, the defence of self defence is based on Section 34(2) of the Criminal Code that reads: ‘Every one who is unlawfully assaulted and causes death or grievous bodily harm in repelling the assault is justified if (a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and (b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.’

Section 265 (1) of the Criminal Code states; ‘A person commits an assault when (a) without the consent of another person he applies force intentionally to that other person directly or indirectly; or (b) he attempts or threatens by an act or gesture to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or (c) while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes.(another person)’

The term self-defence is sometimes used in a wide variety of ways, but in law, self-defence is originally defined by the provisions of the Criminal Code. Any defence that relies on the theory of self-defence must come strictly within the sections of the Criminal Code.

There is no burden on the accused to prove that he acted in self-defence. Instead, the burden is on the Crown to prove beyond a reasonable doubt that the accused did not act in self-defence.

If he's justified in thinking on reasonable grounds and taking all the circumstances and background into account, that he can only protect himself by killing the person whom he believes will do him harm, then it is self-defence if he does so. The accused does not have to weigh his action with nicety.

In R. v. Proulx, a 1998 appeal in the British Columbia Court of Appeal, Mr. Justice Finch stated in part;

“It can be seen from the wording of s. 34(2) of the Code that there are three constituent elements of self defence, when as here the victim has died: (1) the existence of an unlawful assault; (2) a reasonable apprehension of a risk of death or grievous bodily harm; and (3) a reasonable belief that it is not possible to preserve oneself from harm except by killing the adversary.

“In all three cases the jury must seek to determine how the accused perceived the relevant facts and whether that perception was reasonable. Accordingly, this is an objective determination.

“In other words the defence is available even if there is no actual assault, so long as the jury finds that the appellant reasonably believed there to have been an assault. The appellant may be honestly mistaken. Similarly, the appellant may be mistaken in apprehending a risk of death or that he had no alternative other than killing his perceived assailant: the defence still applies if the jury decides that such was the appellant's perception, and that the perception was reasonable in the circumstances.”

There is little question that the first element of a s.34(2) defence, that there exists an unlawful assault, would be satisfied by the appellant's reasonable perception of an unlawful assault. Hence, if there is evidence which would support a finding that an accused believed on reasonable grounds that he was being assaulted, the jury must be instructed that such a belief will satisfy this element of the defence.

The next two elements of the s.34(2) defence are that an accused must have a "reasonable apprehension" of impending death or grievous bodily harm, and must believe on "reasonable grounds" that there is no other option in the circumstances but to use force in self-defence.

Once again, the apprehension of harm and the belief that a violent defence is the only available option for self-preservation are both perceptions that can be founded on honest mistakes on the part of the appellant. Just as the appellant might reasonably be mistaken in his perception of an unlawful assault, so might he be reasonably mistaken in apprehending the degree of danger he faced, or the degree of force necessary to protect himself.

As Chief Justice Lamer pointed out in R. v. Pétel, all three elements of the s. 34(2) defence require the jury to find ". . . how the accused perceived the relevant facts and whether that perception was reasonable".

The appellant's perceptions are matters of fact and, so long as there are reasonable grounds for holding those perceptions, honest mistakes of fact by the appellant will bring him within the protection of s. 34(2).

In R. v. McIntosh, [1995] the Supreme Court of Canada considered retreat as a factor in self-defence. There the accused, armed with a knife, provoked the deceased into a fight. When the deceased responded violently, the accused stabbed and killed him, then claimed self-defence. The crux of the case was whether the accused could claim self-defence under s.34(2), which does not oblige the accused to retreat, or s.35, which does expressly oblige the accused to retreat. In order to come within s.35, the accused must have “declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.”

Justifiable homicide and excusable homicide attracted different duties. In the case of justifiable homicide, or homicide in defending an unprovoked attack, the killer could stand his ground and was not obliged to retreat in order to rely on the defence of self-defence.... In other words, unprovoked attacks imposed no duty to retreat.
In any event, in this case it is clear that the appellant had no obligation to flee, or to attempt to flee, in order to take advantage of the defence of self-defence.

The law is clear that flight from one's own home is not a reasonable option for self-preservation, and that the defence of self-defence will still apply even if there is another way out of the house — the rationale is that one's home is already one's last line of defence against an assailant. The principle of self defence in one’s home therefore is that within one's home one need not retreat from an assailant before claiming the defence of self-defence. For example, a homeowner in his pajamas who is facing a burglar coming into his window may not be in a position to retreat.

The view which the Supreme Court of Canada has accepted as law is that to retreat before employing force is no longer to be treated as an independent and imperative condition if a plea of self-defence is to be made out.

Mr. Justice Holmes in Brown v. United States of America (1920), 256 U.S. 335 at p.343: said in part; "Rationally, the failure to retreat is a circumstance to be considered with all the others in order to determine whether the defendant went farther than he was justified in doing; not a categorical proof of guilt."

The defence would be entitled to say that at law the accused is not obliged to retreat in order to claim self-defence and that's right as far as it goes. However, the failure of the accused to do so is a fact to be considered in determining whether he believed on reasonable grounds he couldn't otherwise preserve himself.

For example, suppose a person is threatened and he has enough time to flee into his house and close and lock the door behind him before his attacker reaches him. If he chooses not to do so and instead pulls out a knife while waiting for his attacker to assault him, he may get about as much sympathy from the court as a dog would get that happens to wander into a flea convention.

My advice to my readers is; don’t threaten people with death or injury. Don’t break into another person’s house, especially at night. However, if you are threatened, flee if at all possible. It doesn’t make you less a person by doing so but if you cannot flee, do whatever you have to do to protect yourself or your loved ones.

I remember years ago, I was attacked by a man after I served his wife with a court summons. I hit him twice and knocked him out on the second blow to his jaw. When he fell to the floor unconscious, I walked away. Some fool cop charged me with assault. The judge at my trial said that I had the right to strike the man hard enough to knock him out and he added; that since I left him alone after he was unconscious on the floor, I acted reasonably.

There was a man in Toronto recently who shot a man whom he had very good reason to believe was going to harm him. Where the sympathy of the judge waned was when the shooter shot the man again when he was down.

Taking the law into your own hands must be done very carefully and almost with precision, not unlike porcupines when they are making love to one another.