Thursday, June 5, 2014

An armed robber may rely on self defence against a home owner?

R. v. Mohamed, 2014 ONCA 442 seems to hold an intruder may rely on self defence against a homeowner.  Some might find such ruling odd.  The Court holds:

[49]       I understand the concern raised by the Crown but do not agree that it provides a basis to restrict the interpretation of s. 35 in the manner suggested. At the outset, I note that s. 35 is not limited to cases where the accused kills or even seriously injures the victim. It also governs the use of lesser defensive force by a person to repel a victim who has been unjustifiably “assaulted” or “provoked” and responds violently. The trial judge’s interpretation would preclude the use of any defensive force to prevent being killed or seriously injured by a victim who reasonably, but mistakenly, apprehended that his or her life was threatened. As explained by the appellant, this would mean that a robber armed with a knife but having no intention of using it, when confronted with a gun-wielding victim who reasonably feared that the robber would use the knife, must submit to being shot rather than knocking the gun out of the victim’s hand. Such a requirement is inconsistent with the general principle of proportionality underlying the defence provisions of the Code as well as normal human instincts.

1 comment:

Anonymous said...

Well no surprise here. Canada being a socialists country and all we are just simply suppose to call the police who are the agents on behalf of the government assigned to protect us. Having said that, I would like to see this case apply in the same way if an intruder armed with a knife broke into the house of an off duty police officer was confronted with an off duty service pistol? Oh that's right to I forgot: the police are specially trained to determine intent so the off duty officer would automatically know the intruder meant no harm!
The more I see case law like this the more respect I lose for the justice system. There is virtually no right to self defence in Canada and certainly no right specified under the Charter. Even the right to "life security and freedom of the person" is moot if you ask me.