Faced with a home intruder? Here’s what is — and isn’t — considered self-defence in Canada

A Milton man on Saturday was charged with second-degree murder after shooting someone who had broken into his home and attempted a robbery, according to police, raising questions about what Canadians are legally allowed to do if they are faced with an intruder.

While Toronto has yet to update its year-to-year data on break-ins for 2022, some regions in the province like Brampton saw a 24 per cent increase spike in break-ins in 2022, according to Peel Regional Police statistics.

The answer as to what is permitted and what is not would fall under self-defence laws in Canada, said Toronto criminal defence lawyer Alexander Karapancev, who has no relation to the case.

While people are allowed to defend their property under Canadian law, a very nuanced analysis" needs to take place to determine what is self-defence and what isn't, he explained.

Whether or not a self-defence argument can be made out really depends on the facts of the case, and rarely are they known to the public at these early stages of a proceeding," he added.

When police charge someone for attacking an intruder

Police have to have reasonable and probable grounds to believe that a criminal offence was committed in order to charge someone," Karapancev explained.

That being said, if someone in Canada shot someone, if they killed someone coming into their home - unless there was a very clear self-defence issue at play - there is a high likelihood that the police would charge them and then the individual would be forced to defend themselves in court."

Police can consider the possibility of self-defence, Karapancev added.

However, in most cases, in my experience, the police typically will charge the individual and then leave that question up to the courts and the Crown."

What is permitted under self-defence law

Under section 34 of the Criminal Code, which deals with self-defence, people are allowed to defend themselves and others if they use reasonable force, Karapancev said.

The use of deadly force would generally only be acceptable in a situation where the person living in the home had reason to believe that their life was threatened - that they had no other reasonable option in defending themselves," he said. So, it's a high standard."

What is considered reasonable force within self-defence

Under section 35 of the Criminal Code, Canadians are allowed to defend their property - whether it's being damaged, stolen or unlawfully entered - through reasonable actions."

I can't think of a case under our law where it would be reasonable to ... viciously attack someone, for example, just because they're intruding upon your property," Karapancev said. That would likely be considered unreasonable force in the court's eyes."

Determining whether or not an action is considered self-defence often comes down to reasonable force, said Karapancev.

It would be up to the court to determine whether or not the defendant used reasonable force in defending themselves and the court would have to consider a number of factors," he explained.

For example, did the assailant have a weapon? If they did have a weapon, what kind of weapon did they have? What was the nature of the threat to the safety of the defendant that was being issued? What was the nature of the force that was at issue? Did the accused have any other options to respond to the threat other than engaging physically?"

Differences between Canadian and American law

Karapancev, who emphasized that he's not licensed to practice in the United States, said that laws in the country vary from state to state.

There are jurisdictions in the United States that have very different self-defence laws and property defence laws than we have in Canada, and one of those would be the castle doctrine," he said.

The castle doctrine is a common law that historically allowed individuals to use reasonable force - including deadly force - to protect themselves and others, in case there was an intruder," he explained. In the U.S., it's still applicable in a minority of states."

Karapancev pointed to Texas as one state that has the most liberal interpretation of the law, which allows the most force to be used to protect a person or property.

Manuela Vega is a Toronto-based staff reporter for the Star's Express Desk. Follow her on Twitter: @_manuelavega