How Canada’s Self-Defence Laws Differ From US States’ Castle Doctrine

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. However, the two countries differ significantly when it comes to the castle doctrine, a law adopted in some U.S. states that allows the use of reasonable force including lethal force, in protecting one’s home and, in some cases, property such as vehicles.

A recent case in Lindsay, Ont., on Aug. 18, in which a man is facing charges of aggravated assault and assault with a weapon after allegedly beating an armed intruder who entered his apartment, has brought this issue to the forefront.

Ontario Premier Doug Ford had earlier said that Canada should have a castle doctrine and, following the Lindsay incident, expressed support for the apartment resident.

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 media release that while Canada allows individuals the legal right to defend themselves and their property, these rights are not “unlimited.”

Self-Defence in Canada

The situations where self-defence is legal in Canada are specified in section 34 and 35 of the country’s Criminal Code, which cover “Defence of Person” and “Defence of Property,” respectively. Self-defence may be considered legally justified if it is “reasonable” and done to defend oneself or another person from a use or threat of force.

Section 34 directs the court to decide if self-defence is justified by considering various factors including the nature of the force or threat, the extent to which it was imminent, any availability of “other means” to respond, and differences between the parties’ physical capabilities and other characteristics. “Other means” may include removing oneself from the situation, to “retreat” from the threat. Further factors include the involvement of weapons, if any, and the nature of the defence response and its proportionality to the use or threat of force.

In 2012, the Conservative government under Prime Minister Stephen Harper passed Bill C-26, the Citizen’s Arrest and Self-Defence Act, which updated Canada’s Criminal Code regarding use of “reasonable” force in self-defence cases. It directed courts to consider imminence and level of the threat faced, whether weapons were used, as well as “proportionality.”

Bruce Pardy, professor of law at Queen’s University, said in a recent appearance on the podcast program the Lavigne Show that before the changes introduced in 2012, the Criminal Code allowed for more castle doctrine-like rights, but the changes introduced that year gave “a great deal of discretion to the prosecution and then to the courts,” which he said created “a huge amount of uncertainty … about how far you’re allowed to go in order to protect yourself and your family.” PPC Leader Maxime Bernier, who used to be a Harper cabinet minister, said in the same show that he recalls these changes were introduced as a “compromise for the leftists” since at the time their government was bolstering gun rights.

Also in 2012, the Harper government passed Bill C-10, the Safe Streets and Communities Act, which increased or imposed mandatory minimum penalties and increased maximum penalties for sex crimes against children and serious drug crimes, among other provisions.

Later, the Liberal government under Prime Minister Justin Trudeau repealed mandatory minimum penalties for drug offences and some gun-related crimes in 2021, noting that they unfairly affect indigenous and black offenders. Trudeau’s government also passed Bill C-75 in 2019, which required police and courts to ease bail conditions, to ensure “release at the earliest opportunity is favoured over detention,” and to consider the circumstances of accused individuals from vulnerable populations at bail.

Poilievre has frequently criticized Trudeau-era policies around bail and criminal justice. His recent comments indicate 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 prime minister.

Canada has dealt with a number of prominent self-defence cases in recent times, including the 2016 case of Peter Khill, who shot and killed an indigenous man whom he found rummaging through his truck outside his Hamilton, Ont., home. Khill was acquitted of second-degree murder but found guilty of manslaughter in 2022.

Another case that found the 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. Faid heard Wilson had put out a “contract” on him and asked Wilson if this was true. The two got into a fight in which Faid said Wilson hit him and then came at him with a knife. After grappling on the ground, Faid took the knife away and stabbed Wilson to death, saying he believed Wilson intended to kill him by grabbing a spear gun nearby. 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 this year, Ford said he supports a Vaughan, Ont., resident who shot off his gun while four thieves were trying to steal his vehicle. The resident faced numerous charges around possessing and firing the weapon, with police calling his actions “extremely dangerous.” Ford said the case exemplifies why Canada should have a castle doctrine and noted that four individuals had tried to steal a vehicle from his driveway the night before the Vaughan incident but had been arrested by police.

A case that found the use of force in self-defence justified was Gerald Stanley’s killing of Colten Boushie in 2016. Stanley found Boushie with four friends on his rural Saskatchewan farm property trying to steal his ATV. Stanley said he fired two warning shots in an attempt to scare them away but subsequently shot Boushie in the head by accident. Stanley was charged with second-degree murder and manslaughter. A jury found him not guilty of both charges, accepting his statement that the fatal shooting was 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 Lavallee, a battered woman who was ultimately acquitted of murder by the jury, with the judge holding the view that a “reasonable person” in Lavallee’s position could consider herself to have been facing a threat to her life due to the domestic violence she had been experiencing.

Self-Defence in the United States

In their self-defence laws, the majority of U.S. states have adopted some form of either the castle doctrine or “stand your ground” (SYG) principles, while fewer states mandate the “duty to retreat.” “Duty to retreat” means people are legally obligated to try to avoid confrontation and withdraw from the threat situation if possible, before resorting to use of force, especially lethal force.

Both the castle doctrine and SYG allow people to use force, including deadly force, without first trying to retreat, as long as they reasonably believe the amount of force they use is necessary to save their life or someone else’s life or to prevent serious injury. The difference is that the castle doctrine permits individuals to use force to protect themselves from an intruder in their own homes or other private premises, while SYG laws expand this to apply to any place where they have a right to be and are accosted by someone threatening them with serious harm or death.

Although proportionality of response and reasonable belief of danger are considered in both legal frameworks, the castle doctrine holds that a belief of life being endangered generally exists as soon as someone’s home is illegally entered.

Florida, Georgia, Missouri, and Texas are some of the states that have adopted an SYG law. While Utah was the first U.S. state to pass an SYG law, in 1994, Florida was the first state to implement an SYG law, in 2005, two decades ago. At least 24 additional states have followed suit 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 murder in 2010, the Ohio Court of Appeal reversed Kozlosky’s conviction and the Ohio Supreme Court did not hear any more appeals. His acquittal was due to the appeal court finding that Kozlosky was fully protected in his use of deadly force under the 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 held firearms outside their home to dissuade a group of protesters during Black Lives Matter protests. The McCloskeys said they felt threatened by the vocal protesters outside their residence, but they were convicted on misdemeanour charges. However, they received a pardon from Missouri’s then Republican Governor Mike Parson in 2021.

An earlier case where the castle doctrine was denied was 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 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 a cinema after the man threw popcorn in Reeves’s face and a confrontation broke out. Reeves was ultimately acquitted of second-degree murder and aggravated battery in the case.

2 Systems, 2 Differing Realities

Canada and the United States both have laws allowing the use of force in self-defence. The difference 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 one’s 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 faced with a threat, including more allowance for use of force when an intruder enters one’s home.

The castle doctrine and SYG laws have faced significant scrutiny, such as in the 2012 Florida case of George Zimmerman fatally shooting unarmed African American teenager Trayvon Martin after a violent confrontation. The laws have also led to cases such as that of Kozlosky, where self-defence potentially saved another person’s life.

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 one’s 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 he has recently stated his support for something like the castle doctrine. However, with the current party standings in Parliament, his chance of doing this remains far off.

The Liberal government hasn’t commented on the recent self-defence cases so far.