Canadians have a right to defend their property or themselves as long as their defensive actions are reasonable under the circumstances. This means that if you injure an intruder entering your home or property, you would need to show that the circumstances gave you no other reasonable choice. Essentially, you can use whatever force is needed to prevent someone from unlawfully entering your house or from hurting you, but not more. The use of lethal force would generally only be appropriate in a situation where you had cause to perceive a threat to your life or of severe bodily harm, and had no other reasonable options for defending yourself.
The Criminal Code, section 35, defines our rights with respect to defending our property. If we believe, on reasonable grounds, that someone is unlawfully entering our property or about to damage it, we can take reasonable actions to prevent the person from entering our property, prevent them from stealing or damaging our property, and to physically remove them from our property. This means grabbing an intruder or burglar and knocking them down would be a reasonable defence, but shooting them would be deemed unreasonable. In Canada, the use of firearms for defence of self or property is generally prohibited by law.
The Criminal Code, section 34, deals with our right to lawfully defend ourselves (or our loved ones). Under the law, we can defend ourselves with reasonable force if we are physically attacked or if we have good reason to believe that a person is going to use force against us or against another person, such as a family member. However, our actions must be solely for the purpose of defending or protecting ourselves from harm. For example, if we continue to strike someone who is no longer a threat, then that action would not be perceived as lawful. As in the defence of property, a person can legally defend themselves by actions that are reasonable in the circumstances. Some of the factors that the courts will use to judge if you used reasonable force in defending yourself are:
- What was the nature of the threat or force?
- How imminent was the threat to our safety (i.e. is the danger just about to happen or do we have time to avoid a physical altercation)?
- Did we have other options to respond to the threat, other than physical force?
- Did either my attacker or I use a weapon?
- What was the relative size, age, gender and strength of the two parties involved in the incident?
- Do the parties involved have a prior relationship or a history of disagreements or fighting?
- Was my response to the threat or attack relatively proportionate to the attacker’s action?
- Was the threat or use of threat against me authorized by the law? (i.e. if police are lawfully entering your property or detaining you, you cannot use force to defend yourself against them.)
Self-defence or assault?
In a 2014 trial, R. v. Deluney, a man faced assault charges against his brother, but argued that his actions were only in self-defence. The incident leading up to the alleged assault began when one brother, Robert, arranged for the other, William, to take care of his house while he worked out of the province. Robert gave his brother the keys to his home, but upon further consideration, decided that he did not trust his brother’s friends to refrain from entering his house while he was away, so he went to William’s house to retrieve his keys. The two men began to argue; William moved towards Robert; Robert grabbed William and a scuffle ensued. In determining whether the altercation was a case of assault or self-defence, the trial judge consider the following factors. 1) The two brothers were roughly the same size and age. 2) The brothers basically got along well before this incident. 3) The act of grabbing his brother (rather than punching him) was a proportionate response by Robert to the perceived threat when his brother moved towards him. Based on this evidence, the judge concluded that William’s action was reasonable under the circumstances and he was therefore acquitted on the assault charge.
In another recent case, two Thornhill men, Alexandru and Marius Truta, tried to stop three men from breaking into their garage in the middle of the night. Two of the intruders fled, but one ended up in critical condition after the altercation. Police subsequently charged the two brothers who were defending their home with aggravated assault. However, a number of issues, brought to light by the Truta’s lawyer, resulted in all charges against them being dropped. Arguments that were introduced in the Truta’s defence include the fact that the intruder had a criminal record, and had previously spat on one of the brothers and struck him several times on his own property. Further, the Truta home had been robbed of tools several times before the intruder was discovered in the yard. Also, the brothers first asked the burglar to wait for police before the fight ensued. The facts of the case supported the view provided by the defence that the brothers were acting reasonably to defend their property based on all the circumstances preceding and during the altercation.
A third case involves a Port Colborne man who, in 2010, fired warning shots into the air to scare away a group of men who threw Molotov cocktails at his home during the night and consequently set part of his house on fire. The attackers were paid by another local man who made an unsubstantiated allegation that the owner of the property was a pedophile, and this attack was an attempt to get the owner to move out of the neighbourhood. The owner was awakened from his sleep by the explosion of the first Molotov cocktail and upon looking out of his window, heard one of the men yell that he should move or he would die. The owner got his handgun, exited his house and fired three rounds into the air, which caused the assailants to flee. No people were hurt, although one of the owner’s dogs was singed and there was about $10,000 damage to his home. However, when police arrived, they arrested the owner on charges of careless use of a firearm and unsafe storage of a firearm, and police also seized the man’s firearms and ammunition. Police purportedly pressured the gun owner to take a plea and accept a weapons prohibition but he refused, and the court ultimately found him innocent on all charges.
Under section 34 and 35 of the Criminal Code, you are within your rights to defend yourself and your home from unlawful entry, but each case is assessed on the unique facts of the case. If you face assault or firearms charges arising from an incident involving self-defence or defence of your property, the key to your defence is convincing the Crown or court that your actions were reasonable given all the circumstances surrounding the event. Call the experienced criminal lawyers at Kruse Law if you were detained or arrested on any assault charges to find out about your legal rights and get us working on a strong defence today.