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| Michael Coristine |
The irony of the premier’s comments is that these days, the bullet and the provincially underfunded hospital were equally likely to kill the home invader. I digress.
Alfadanz: ISTOCKPHOTO.COM
Support for the premier’s mindset can also be gleaned by the surging number of firearm registrations across Canada, likely driven by the rash of home invasions targeting vehicles that terrorized the GTA over the last few years.
It turns out that the great “stand your ground” debate is much ado about nothing, as the law of self-defence in Canada has always allowed for lethal force in appropriate circumstances. So, whether you are one of the many prospective new firearm owners, a criminal law enthusiast (or both), let this article serve as a brief overview of the relevant legal principles.
The foundation: Three elements of self-defence
Section 34 of the Criminal Code sets out a three-part test for self-defence. A person is not guilty if all three components are met:
1. Reasonable belief: Was there a threat or use of force?
To trigger self-defence, the accused must subjectively believe that force (or a threat of force) is being used against them or someone else; and that belief must be objectively reasonable given the circumstances.
Courts look at the situation through the accused’s eyes but filtered through what a reasonable person with similar characteristics (like size, age, physical abilities or knowledge of the other person’s history) would have thought. Importantly, certain traits — like intoxication, paranoia or racist fear — cannot be used to justify a belief that force was imminent.
To trigger self-defence, the accused must subjectively believe that force (or a threat of force) is being used against them or someone else; and that belief must be objectively reasonable given the circumstances.
Courts look at the situation through the accused’s eyes but filtered through what a reasonable person with similar characteristics (like size, age, physical abilities or knowledge of the other person’s history) would have thought. Importantly, certain traits — like intoxication, paranoia or racist fear — cannot be used to justify a belief that force was imminent.
2. Defensive purpose: Was the goal to protect?
Even if the accused reasonably believes they’re under threat, their actions must be taken for the purpose of protection.
If the response is retaliatory or aggressive, the defence fails. Courts recognize that motives can evolve quickly during an escalating confrontation, but the core purpose must be defensive.
Even if the accused reasonably believes they’re under threat, their actions must be taken for the purpose of protection.
If the response is retaliatory or aggressive, the defence fails. Courts recognize that motives can evolve quickly during an escalating confrontation, but the core purpose must be defensive.
3. Reasonable response: Were the actions reasonable?
Finally, the accused’s actions must be reasonable in the circumstances. This is an objective assessment guided by a list of mandatory factors in s. 34(2), including:
Finally, the accused’s actions must be reasonable in the circumstances. This is an objective assessment guided by a list of mandatory factors in s. 34(2), including:
- The nature and imminence of the threat
- Whether other options (like retreating) were available
- Whether weapons were involved
- The history between the parties
- The proportionality between the threat and the response
- The accused’s role in starting or escalating the incident.
None of these factors is decisive on its own — courts weigh them together to assess overall reasonableness. So, in the Vaughan homeowner’s case, self-defence would likely fail if he continued to shoot at the assailants as they fled the home or if the assailants were clearly unarmed. This third criteria is perhaps the most fact-specific.
The ‘air of reality’ gatekeeper
Before a jury or judge can even consider self-defence, there must be an air of reality to each of the three elements. This means there must be some evidence on which a reasonable jury could acquit.
The accused must first raise this minimal threshold.
Once met, the Crown must disprove any one of the three elements beyond a reasonable doubt to defeat the defence.
This structure ensures that self-defence only goes to the trier of fact when it is grounded in evidence — not speculation.
‘Nicety’ and ‘precision’ are not required
In high-stress situations, “nicety” is unrealistic. Historically, courts used a Baxter instruction to remind juries that people in danger cannot be expected to measure their defensive force with precision (R. v. Baxter, 27 C.C.C. (2d) 96 (Ont. C.A.)). While less commonly required under the revised law, it can still help contextualize a split-second response.
Credibility isn’t enough
Even if a jury believes the accused’s testimony, self-defence fails if their beliefs were not reasonable or their actions weren’t objectively justified. Thus, even a well-intentioned homeowner could go down for overdoing it and “emptying the clip” after the initial threat is neutralized.
Being a legal firearm owner is not a requirement
Even those who possess weapons illegally are not precluded from using self-defence where otherwise justified. The likelihood remains that separate possession charges will nonetheless be pursued by police and the Crown.
How did the law change in 2013?
A major 2013 overhaul to the Criminal Code and subsequent case law led to further nuances that balance the personal experiences of the accused with broader social standards of what is reasonable. Those key changes included:
- Broader applicability to more offences and situations
- Turning strict requirements like proportionality or imminence into flexible factors
- Replacing “unlawful assault” with the broader concept of force or threat of force
- Allowing defence of any person, not just someone under the accused’s protection
- Permitting self-defence even where the accused strikes first
- Removing the strict requirement that only the minimum necessary force be used
- Recognizing any act (not just the use of force) as a possible defensive response.
These changes essentially gave judges and juries greater flexibility while grounding the analysis in so-called societal norms of acceptable conduct.
Michael Coristine spent the first 10 years of his legal career as a Crown attorney in Toronto. In 2022, he left the Crown attorney’s office to open his own criminal defence practice in Toronto. His boutique firm also practices family law. Coristine received his Juris Doctor from Osgoode Hall Law School in 2013. Prior to entering law school, Michael honed his business skills as an accounting executive in the entertainment industry.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
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