You may have read in the news recently that a Milton Ontario man whose home was invaded by I think at least three people one with a gun was charged with 2nd degree murder for shooting one of them in self defense and his lawyer claims that the person was basically about to threaten their mother. It’s a bit shocking, of course, that he’s charged 2nd degree murder but it’s not surprising to me because the police often in the situation will do this lay a charge and let the courts or the crown attorney sort it out later. But this is a really vexing question you know, you’re in your home, your sound asleep your 110 pound woman or a man doesn’t matter. Someone breaks in your home they are large powerful man they have a knife or a gun. What do you do? Well, the police will tell you well, if your adrenaline’s going and you’re scared, you see this person what the heck do you do? The police of course will tell you try get house if you can. And that’s obviously the best thing to do. Don’t confront the person get out of the house, phone 911. You know far better to get your television stolen then get life taken. So but what do you do with this situation if you now fear for your life, they’re coming at you? Well in Canada, you’re allowed to protect yourself in self-defense under Section 34 of the Criminal Code if you have imminent fear that you’re being attacked or about to be attacked or assaulted. You can use reasonable force to protect yourself and you have to act reasonably. I mean, I’ll use some examples but it’s proportional force. Okay. So for example, let me give you one clean, clear example of persons coming at you with a gun and you happen to have a gun on your nightstand well, you’re about you fear that they’re about to shoot you, they’re threatening, well, that seems to me to be reasonable proportionate force in that situation obviously. Now, let’s say you’re another example. Let’s say you’re a large man, powerful bodybuilder, you’re a trained fighter, and some kid breaks in your house and then they’re not that much of a threat to you and they have no weapon and you just go vicariously beat them up. Well, you’re not allowed to do that. You’re allowed to remove them from your house using reasonable force in that situation you might detain them for the police or whatever. The kid’s going to be scared. In between those are a lot of gray areas, and it’s a very difficult situation in Canada. New laws are brought in in about 2012 or 13 redefining our self-defense under Section 34 and protection of property under Section 35. Supposedly simplifying the law but we haven’t had I don’t think enough guidance from the courts as of yet to fully articulate a home invasion situation where the lines can be drawn in this situation. And I can think of other gray areas situations for example, you know, someone’s coming at you with fists in a home where you would entitled to use a knife on them, you may be. Every situation is going to be different and has to be analyzed. And as I said, I find the police on many situations where there’s a death involved, you know, they’re going to analyze it. They have to have reasonable probable grounds to lay a charge, of course, but oftentimes, they’re just going to lay the charge. There you are. You may be completely innocent. You were mortified. You’re just sleeping in your home and now you’re facing 2nd degree murder. I can’t imagine how this Milton, especially if what his lawyer says is true that this intruder was going after his older mother for my God, now he charged with 2nd degree murder facing a lifetime sentence. So, I mean, I went online and I know I know the advice when you try and retrieve try and get the heck out but ultimately, if that person’s coming at you, you’re allowed to use reasonable force proportional force that may be in certain situations, if you feared for your life, that person has got a gun or a knife and maybe a gun. It may be a knife. It may be using your fists or grappling with the person in other situations. I mean, I mean, if a person is just shaking, you don’t take out your gun and shoot them obviously. But it’s a really troubling situation. We don’t have enough guidance in Canada on this point. And it’s very sensational, I mean, there’s no question that I really I feel quite badly for this person because you can imagine being woken up in the middle of the night, even if he made a mistake with a gun my God. I mean, these people broke into his home. What’s the answer that. Well, I’ll tell you the answer in many states is you’re allowed to do it. I mean, in the States, you got the castle doctrine in Texas. Oh, my God, don’t try and break in in Texas because you’ll get shot and the person might go scot free obviously, because they got much more stringent lines. Where’s the line here? Well, I think a lot of people are going to say oh, you should be entitled to defend yourself in your home and protect your property. And by the way, this is for self-defense in your home. You know, defence of property just because a person’s broke into your property and they’re not attacking you like to take punching and kicking and hitting and stabbing and shooting them. I mean, you’d be entitled to use reasonable force to remove them from your property, let’s say a trespasser. Now, if that person escalates it, you can escalate your force if they escalate it so that your fear for life you can escalate it. If they escalate using a knife will you make use of a gun or a knife on them as well. The other problem with these situations of course, if you shoot someone in your house, well how the heck did you have a loaded firearm you might be facing other charges because there’s mandatory minimums for loaded firearms and how did you get that because bullets are supposed to be stored and trigger locks and bullets aren’t supposed to be in guns and what not, but I know a lot of people who sleep with you know law abiding citizens and still keep a baseball bat or a golf club in you know, near them because they’re fearful and we live unfortunately, a society that’s going to face this problem and I think you’re going to see more of these cases in the news going forward got a lot of drug addicts unfortunately society, a lot of home invasions. I can’t imagine how someone could be so stupid as to break into someone’s house at night. Oh, my God, don’t do that in Texas because you’ll get shot and that and he’ll be shot dead very quick. Don’t mess with Texas. But anyway, that in a nutshell is what’s going on in Ontario. It’s a really gray area. I’ve just touched on it very lightly. It’s very complicated. And ultimately, if this goes to trial on that 2nd degree murder, there’s a lot of factors all the facts have to be looked at, the role that people played, whether the other person had a gun or whether they were coming at him, whether they were threatening with a gun or were they threatening his mother, and you know, that’s what’s going on there. Now, conversely, there was a case there was a knifing in Nova Scotia on a home invasion and that person wasn’t charged. Obviously, the police there thought they were acting in self-defense so I’m assuming the other invasion person must have been threatening their life either with fist or a knife. I mean, there are situations I think I’ve seen it, I’ve won a case like this once where a person was confronted with fists and actually stabbed a person because they were much, much bigger and they fear for life. I mean, a 200 pound man who’s a trained fighter on 130 pounds whose not with fists can kill that person. So would you’ve been told to knife him, probably. I don’t recommend it and just retreat from that man, but these are vexing situations every facts different and there’s a whole laundry list under Section 34 of the Criminal Code which you have to consider in these cases. And God help that guy in Milton. I really hope that you know, the right things done by him by the Crown Attorney or ultimately in court and his lawyer it seems to think this is a travesty of justice and it may very well be we I don’t know I don’t know the facts, and that remains to be seen. Now we have I want to mention to you, we have offices across the province. We have a Toronto office and we have Windsor, London and Kitchener. Feel free for example to call our Kitchener or I should say our Toronto or Kitchener assault or domestic assault lawyers, we have sexual assault lawyers, we handle everything under the sun, and we’ll help you and look forward to your call if you need a free consult.

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