‘No absolute right to self-defence’: What to know about defending yourself from intruders in wake of Ont. man being charged

A Kawartha Lakes police station is seen in this photo. (CTV News)

A home invasion on Monday that resulted in criminal charges against a Lindsay, Ont. man, who police say assaulted an intruder and left them with life-threatening injuries, is raising questions around what constitutes reasonable force.

The incident happened at around 3 a.m. on Monday at an apartment on Kent Street.

• Ont. man charged with assaulting home intruder used knife, court docs say

Police have said that a 44-year-old man was asleep when he awoke to find an intruder inside his unit.

An altercation then ensued, which resulted in the suspect sustaining serious, life-threatening injuries.

Police later filed criminal charges against both the intruder and the tenant, prompting Ontario Premier Doug Ford to speak out about what he said was a “broken” system.

Federal Conservative Leader Pierre Poilievre also took to social media on Thursday and appeared to draw attention to the case, saying: “If someone breaks in, you deserve the right to defend your loved ones and your property - full stop.”

The case drew so much attention, in fact, that Kawartha Lakes Police Chief Kirk Robertson issued a statement responding to criticism of the arrest.

“Under Canadian law, individuals have the right to defend themselves and their property,” he wrote. “However, it is important to understand that these rights are not unlimited in Canada. The law requires that any defensive action be proportionate to the threat faced. This means that while homeowners do have the right to protect themselves and their property, the use of force must be reasonable given the circumstances.”

A lawyer for the tenant in Lindsay told Newstalk 1010 on Thursday that his client “maintains his innocence” and believes that “their conduct was lawful.”

“Everyone is concerned regarding the situation because everyone wants to feel safe in their home,” Steven Norton said.

In the U.S., several states have the Castle Doctrine, which allows a person to use reasonable force, including deadly force, to protect themselves against an intruder.

Canada doesn’t have a similar law in place, though.

CTV News Toronto spoke to several legal experts on what there is to know when to it comes to the legalities of protecting oneself against potential harm from an intruder.

Self-defence claim may not be successful at trial

Kent Roach, professor of criminal law at the University of Toronto, said that these types of cases have become more common since Canada’s self-defence laws were changed in 2012. Since then, it has become more challenging to predict if a self-defence claim would be valid.

Ultimately, it comes down to the police to determine if there are grounds to lay charges, he said.

“The homeowner can certainly advance an argument of self-defence and defence of property, but it may or may not be successful at trial, but that’s the way things generally operate,” he said.

A widely referenced example of this is the Supreme Court of Canada case, R. v. Khill, where, in 2016, Hamilton resident Peter Khill shot and killed a man who was in his pickup truck on his property. While Khill was acquitted by a jury, the Ontario Court of Appeal went on to overturn the verdict and ordered a new trial, based on the jury’s instructions around Khill’s role in the incident and whether there was a reasonable assessment of self-defence. The Supreme Court upheld the request for a new trial in 2021, citing some of Khill’s actions like not turning on his porch light or calling 911. After a new trial in 2022, he was convicted of manslaughter and sentenced to eight years in prison.

Roach said there are no different rules that apply whether someone is on your property or in your home, meaning “there’s no absolute right to self-defence.”

“It’s ultimately up to a judge and jury to determine what is reasonable in the circumstances,” he explained.

“The accused will have the benefit of a reasonable doubt at trial if he or she acted in self-defence, but there are no guarantees, that just because someone thinks that the amount of force that they are using is reasonable to them, that’s not really the issue,” he said. “The issue is, is it reasonable to the judge or the jury.”

Circumstances considered

Criminal defence lawyer Joseph Neuberger said that Canadians have the right to protect themselves, their property or anyone in their home from a threat. However, he said that many cases hinge on what the suspect is using to commit the crime.

“If they’re in possession of a knife, that’s certainly a heightened risk where there is clear imminent risk of harm or death,” he said “You’re allowed to use fairly significant force to repel that individual and you may have no choice because you’re protecting others in your home and yourself.”

The same goes for if the intruder has a gun, which would put the homeowner at significant risk of harm or death. Neuberger said in that case a person could use significant force, including lethal force.

He explained that it gets murky if there’s another form of weapon outside of a knife or gun. Self-defence law makes allowances for an individual who’s responding to a threat and could be extremely traumatized, resulting in them not being able to measure their level of force in the moment, he said.

But if the person uses force with a baseball bat, for example, to disarm the intruder, and then continues to assault them, those circumstances are considered “excessive force” and could result in aggravated assault charges, or more serious charges, against the homeowner, according to Neuberger.

He noted that there’s no duty to retreat in Canada, which means that if someone comes into your property, you don’t have to run away.

“If there’s imminent risk to you right away, you’re allowed to response to that with reasonable force,” he said.

He added that Canadians shouldn’t want to be more like the U.S., because we have sufficient and broad enough self-defence laws that if an individual enters your property with a knife or gun and you are at serious risk of bodily harm or death, you can respond with lethal force.

“There will be all sorts of circumstances that will look at what weapon you were using, or if you’re a lawful gun owner,” he said. “We do have sufficient allowance and broadness of the law for those circumstances to happen. But we do not want to go down the road of the United States, where you strictly have the Castle law, in my opinion.”