More Misconceptions about Canadian Law and Self Defence
Recently I came across an article by Gary Mauser of SFU, called Armed Self Defense: The Canadian Case. I perused the article and browsed his web site exposing the fallacies of (Canadian) gun control rhetoric and supposed success. I even got 8 out of 10 correct on his Gun Quiz - missing a date and a total number.
But I had a problem with his use of the Criminal Code which he claimed severely limits our Canadian right to self defence. I think he is wrong. I also have a problem in that he supports his arguments by anecdotal evidence such as in this phrase:
“Another important difference between the United States and Canada is enforcement. Judging from newspaper reports, anyone who uses a weapon in self defense is much more likely to be charged in Canada than would be the case in the United States.” (page 7 of the pdf version, called page 53 on the page)
The phrase: Judging from newspaper reports, is offensive to me as unbecoming to cogent argument.
On page 6 of the pdf version (called page 52 on the page) of The Canadian Case, he writes:
In section 35, the code goes on to require that one must show that
“he declined further conflict and quitted or retreated from it (the assault) as far as it was feasible to do so before the necessity of preserving himself … arose.”
Mr. Mauser’s implication that this restriction to our right to self defence is universally applied, is wrong. This common misconception I have dealt with in my essay: Self Defence and Canadian Law: The Need to Retreat.
Section 35 in its entirety clearly limits our need to decline further conflict and quit or retreat as far as it was feasible to do so to the very narrow situation where you started an unjustified assault upon someone and then had to subsequently fight for your life.
This does not limit our right to self defence nor the protection of our family by the use of force or weapons, but merely does not ordinarily allow a claim of self defence when you use force against someone you already assaulted.
And that seems reasonable to me…
Still on page 6, is the quote:
“Moreover, the right to use physical force to defend non-family members is more limited than it is in many American states, as are the Canadians’ rights to repulse trespassers on their own property, or to use force to stop the commission of serious or violent crimes (Viz. sections 24, 40, and 41).”
First, Section 24: Attempts
24. (1) Every one who, having an intent to commit an offence, does or omits to do anything for the purpose of carrying out the intention is guilty of an attempt to commit the offence whether or not it was possible under the circumstances to commit the offence.
Question of law
(2) The question whether an act or omission by a person who has an intent to commit an offence is or is not mere preparation to commit the offence, and too remote to constitute an attempt to commit the offence, is a question of law.
I’m just not too sure what Mr. Mauser’s point is about this section which contains the law that if you intend to commit a crime, once you do anything or do not do something that furthers this intent, you are guilty of an attempt to commit the offence, even if you have not yet the means to actually commit the offence. Getting prepared to commit a crime is also an offence.
How this limits our right to protect our families is not yet clear to me.
Next we look at Sections 40 and 41:
Section 40: Defence of dwelling
40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.
Section 41: Defence of house or real property
41. (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.
Assault by trespasser
(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.
Since we are justified in using as much force as is necessary to repel those forcibly breaking into or forcibly entering our dwelling (S, 40), I see little limitation to our right of defense of our dwellings. It may be that the use of a firearm from a concealed position against an unlawful intruder may be construed by Canadian Courts as unjustified but this section does not support that meaning.
In McKay v. The Queen, the Supreme Court said:
In so concluding, we should not be taken as endorsing the Court of Appeal’s analysis on the scope of the defence of property. By way of clarification, we should not be taken as endorsing the view that “defence of property alone will never justify the use of anything more than minor force being used against a trespasser” or that, in all cases, “the defence of property alone will not justify the intentional use of a weapon against a trespasser.” [emphasis my own, to highlight meaning]
The force used to prevent a trespasser entering your property or to remove him, is modified by the phrase, if he uses no more force than is necessary, (S. 41).
Back in 1973, Morley Baxter fired a shotgun at some people on his farm in Orilla and tried to find a defence under S. 41. As recorded in R. v. Baxter 27 CCC (2nd) 96, the appellant Judge notices:
“The section of the Code authorising the use of force in defence of a person or property or to prevent the commission of certain serious crimes overlap, and the use of force in particular circumstances may be justified under more than one section… Firing at a mere trespasser is, of course, not justifiable.” (emphasis mine).
If that is the limitation we are under as Canadians, while US citizens enjoy the right to be justified in shooting at mere trespassers, then so be it - it does not seem unreasonable to me.
The limitations to doing violence to trespassers is further supported by Section 38: Defence of personal property, dealing with a trespasser who has stolen property in his possession.
Section 38: Defence of personal property
38. (1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified
(a) in preventing a trespasser from taking it, or
(b) in taking it from a trespasser who has taken it,
if he does not strike or cause bodily harm to the trespasser.
Assault by trespasser
(2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.
This makes it clear that you cannot use violence against a criminal who has your stuff until he assaults you by resisting your taking back your goods, at which time you may forcibly deal with his assault according to the statutes in place, a full rendering of which is available in Canadian Law and Self Defence.
Firing a firearm at thieves as they drive away with your belongings seems to be unjustified under these laws.
So be it.
This does not exhaust the list of the ramifications of other sections of the code, nor does it address the permutations caused by precedence, the past decisions of judges interpreting these laws. It is more complicated than we have touched upon here.
Armed Self Defense: The Canadian Case
by Gary Mauser Ph D
Institute of Canadian Urban Research Studies and
Faculty of Business Administration
Simon Fraser University
Burnaby, BC, Canada