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Canadians have a right to self-defence, but the complex section of the Criminal Code that allows it makes it a crapshoot whether someone invoking it will be found to have acted lawfully.
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The case of Jeremy McDonald, 44, of Lindsay, Ont., who was charged with aggravated assault and assault with a weapon after he woke up to find an intruder in his apartment early Monday, will be decided by the courts.
But let’s imagine a case where you, a law-abiding person who has never been in such a situation before, are asleep in your bed at night and wake up to find an intruder in your home.
Under Section 34 of the Criminal Code, you have a right to use force or the threat of force to defend yourself and your family, if the intruder is using force or the threat of force against you and if your response “is reasonable in the circumstances.”
“Reasonableness” is determined by multiple factors, including, but not limited to:
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(a) the nature of the force or threat;
(b) 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;(c) the person’s role in the incident;
(d) whether any party to the incident used or threatened to use a weapon;
(e) the size, age, gender and physical capabilities of the parties to the incident;
(f) 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;
(f.1) any history of interaction or communication between the parties to the incident;
(g) the nature and proportionality of the person’s response to the use or threat of force; and
(h) whether the act committed was in response to a use or threat of force that the person knew was lawful.
The idea that a confused and panicking law-abiding person who has never been in such a situation before will be capable of going through a mental checklist like this, within seconds, to determine whether their actions in self-defence are “reasonable,” is absurd and should be weighed against the intruder putting himself in harm’s way.
Clearly, Canada’s law on self-defence needs work.
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