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News Analysis
The legal use of force to defend yourself extends back to the beginning of human civilization. However, significant differences have arisen in different legal systems over how much force is justified and in what circumstances.
Modern-day Canada and the United States have some overlap in legal use of force for self-defence but differ significantly when it comes to the castle doctrine, a law adopted in some U.S. states allowing use of lethal force in protecting one’s home and, in some cases, property such as vehicles.
A recent case in Lindsay, Ont., in which an apartment owner is facing charges of aggravated assault and assault with a weapon after allegedly beating an armed intruder who entered his residence, has brought this issue to the forefront.
Ontario Premier Doug Ford has said Canada should have a castle doctrine and expressed support for the apartment owner, while Conservative Leader Pierre Poilievre posted Aug. 21 that “if someone breaks in, you deserve the right to defend your loved ones and your property – full stop.”
Meanwhile, the investigating force, the Kawartha Lakes Police Service, said in an Aug. 20 statement that while Canada allows the legal right to self-defence, these rights are not “unlimited.”
Self-Defence in Canada
The situations where self-defence is legal in Canada is specified in Sections 34 and 35 of the country’s Criminal Code. Self-defence may be considered legally justified if it is “proportional” and “reasonable” and is done with the purpose of defending oneself or somebody else from an illegal use of force.
Courts are directed to decide what self-defence is justified by considering a number of factors including the nature of the threat, how imminent it was, alternatives to using force for defence, whether weapons are used, differences between the age or physical strength of the parties, and whether the forced used in defence was proportional to the threat being faced.
Section 35 specifies legality of using force when a person provokes or starts a fight but didn’t intend to seriously hurt someone and is counterattacked such that they fear grave injury or death. In such cases, they may use force to defend themselves, particularly if they had tried to leave the fight but the victimized party kept attacking them. In such a case, “reasonable” defence to preserve themselves is legally allowed.
The Harper administration passed Bill C-26 in 2012, updating Canada’s Criminal Code to allow more provisions for “reasonable” use of force in self-defence cases. It directs courts to consider imminence and level of the threat faced as well as whether weapons were used and “proportionality” in determining whether use of force in self-defence is legally allowable. The Harper government also passed Bill C-10, the Safe Streets and Communities Act, bringing in more mandatory minimum sentences and harsher prison terms for drug and sex crimes.
However, the Trudeau government eliminated mandatory minimum sentencing for various criminal offences and eased punishments on releasing offenders in 2019, stating a desire to address “systemic” problems within Canada’s justice system.
While Poilievre has not specifically said that the Harper government’s legislation didn’t go far enough, he has frequently criticized Trudeau-era policies around bail and criminal justice, and his recent comments show that he wants even more expanded rules around allowable use of force in self-defence cases in Canada, which he says he will put into law if elected as prime minister in the future.
Canada has dealt with a number of prominent self-defence cases in recent years, including the 2016 case of Peter Khill, who shot and killed an indigenous man who he found rummaging through his truck outside his Hamilton, Ont., home. Khill was acquitted of second-degree murder charges but found guilty of manslaughter.
Another case finding use of force in self-defence unjustified was the 1983 case of Donald Faid, who was involved in the sale of drugs with Robert Wilson. Suspicious that Wilson had put out a contract to have him killed, the two got into a fight in which Faid said Wilson punched him and then came after him with a knife. After grappling on the ground, Faid responded by taking the knife from Wilson and stabbing him to death, saying he believed that Wilson intended to kill him. Faid was convicted of second-degree murder, with the court finding he had used excessive force that wasn’t legally justifiable as self-defence.
In June of this year, Ford said he supports a resident of Vaughan, Ont., who shot off his gun while four thieves were trying to steal his vehicle. The resident was hit with numerous charges around possessing and firing the weapon, with police calling his actions “extremely dangerous.” Ford stated that the case exemplifies why Canada should have a castle doctrine, also saying individuals had tried to steal a vehicle from his driveway the night before the Vaughan incident, but had been arrested by police.
A case which made national headlines in 2016 that found use of force in self-defence justified was Gerald Stanley’s killing of Colten Boushie. Stanley found Boushie and four friends on his rural Saskatchewan farm property trying to start his ATV. Stanley fired warning shots and then shot Boushie in the back of the head, killing him. The incident led to Stanley being charged with second-degree murder and manslaughter. However, he was found not guilty of either by a jury who accepted his statement that the fatal shooting of Boushie had been due to a “hang fire” of old ammunition discharging from his handgun accidentally.
Another landmark case where the court found lethal use of force justified was the 1990 case of Angelique Lavallée, a battered woman who was ultimately acquitted of murder due to the judge holding that a “reasonable person” in her position could consider themselves to have been facing a threat to their life due to the domestic violence she had been facing.
Self-Defence in the United States
The majority of U.S. states have some form of the castle doctrine in law, including expanded stand your ground (SYG) laws in states such as Florida, Texas, Missouri, and Georgia, which allow use of deadly force anywhere a significant threat is faced that could reasonably lead to a fear of death or serious injury.
The castle doctrine holds that an individual has no obligation to retreat inside their residence and can use as much force as necessary including deadly force to protect themselves from an intruder, as long as they believe the amount of force they use is necessary to save their life or prevent serious injury.
Some states extend this to SYG laws, where reasonable force up to deadly force can be used by someone facing a threat in any location they are legally present and accosted by somebody posing serious harm or death to them. Florida first adopted SYG laws two decades ago, followed by more than 24 additional states since that time.
The castle doctrine has been successfully applied in numerous U.S. cases, including the 2009 case of Carl Kozlosky of Cleveland, Ohio. Kozlosky shot and killed Andre Coleman, who had been evicted from Kozlosky’s house due to fighting between him and a female tenant. Coleman and the tenant had been in a “tumultuous relationship” that was “fraught with physical abuse,” court documents said. According to court testimony, Coleman broke into the home and began assaulting the woman, at which point Kozlosky shot him dead.
Despite being initially found guilty of aggravated murder in 2010, the Ohio Court of Appeal reversed Kozlosky’s conviction and the Ohio Supreme Court did not hear any more appeals, leading to him being acquitted on all charges. His acquittal was due to court of appeal finding that Kozlosky was fully protected in his use of deadly force under castle doctrine, especially as Coleman had a history of break-ins and violent actions.
Another prominent case involving armed defence of a residence occurred in 2020 in St. Louis, Missouri, when Mark and Patricia McCloskey brandished firearms at protesters outside their home during Black Lives Matter protests. The McCloskeys said they felt threatened by the vocal protesters outside their residence, but were initially convicted on misdemeanour charges. However, they received a pardon from Missouri’s former Republican Governor Mike Parson in 2021.
Another case where the castle doctrine was denied is the 2014 case of Markus Kaarma in Montana. Kaarma shot and killed a teenaged German foreign exchange student named Diren Dede after Dede entered his open garage. Court documents said that Kaarma had been expressing wishes of committing violence and had been waiting to catch someone. Kaarma was sentenced to 70 years in prison.
SYG laws have also been successfully used in numerous cases, including the 2014 Florida case of Curtis Reeves, who shot and killed a fellow moviegoer at the cinema after the man threw popcorn in Reeves’s face and a confrontation broke out. Reeves was ultimately acquitted of second-degree murder charges and aggravated battery charges in the case.
The bar for courts in deciding the castle doctrine is whether the individual who used force when someone unlawfully entered or tried to enter the premises, while SYG is based on the use of force being in a place the individual was allowed to be at the time when they faced a danger or attack. Although proportionality of response and reasonable belief of danger are considered in both legal frameworks, castle doctrine holds that a belief of life being endangered generally exists as soon as somebody’s home is illegally entered.
2 Systems, 2 Differing Realities
Canada and the United States both have laws allowing the use of force in self-defence. The difference between the two systems, however, is that most U.S. states with the castle doctrine provide a far broader interpretation of what constitutes a threat to life and what force may be used to protect the home.
Canada’s Criminal Code places more weight on proving that force used in defence was reasonable and proportional to the actual imminent threat faced, whereas most U.S. states allow greater latitude in justifying use of force when a threat is faced, including more allowance for use of force when an intruder enters the home.
The castle doctrine and SYG laws have faced significant scrutiny, such as in the 2012 case of George Zimmerman shooting unarmed teen Trayvon Martin after Martin attacked him, which became the subject of partisan politics. However, they have also led to cases such as that of Kozlosky where self-defence potentially saved another’s life.
Meanwhile, Canada’s self-defence laws are now being criticized by some politicians such as Ford and Poilievre for being too restrictive on allowable use of force in defending the home.
Changes to Canada’s Criminal Code will have to come from the federal level. For his part, Poilievre has said he will use any tools available under the Canadian Constitution to put forward tougher restrictions on criminals and has recently stated his support for something like the castle doctrine, but with the current makeup in Parliament, his chance of doing this remains far off.
So far, the Liberal government hasn’t commented on the recent self-defence cases.