Fight or Flight: Ontario Court of Appeal Affirms Right of Self-Defence in Home
Flight or Fight? The Ontario Court of Appeal Affirms Right of Self Defence in Home
A recent Ontario Court of Appeal Case has affirmed that a person under attack in his own home is not required to flee before defending himself. This decision does not, however, open the door for homeowners to use deadly force where the threat does not warrant it.
In a decision dated September 14, 2011, the Court of Appeal ordered a new trial for Cedric Forde, who admitted killing Clive McNabb in self-defence by stabbing him once with a knife after McNabb attacked him with a knife. The main issue at trial was whether the Crown Attorney had proved beyond a reasonable doubt that Forde did not act in lawful self-defence. The jury acquitted Forde of second degree murder, but found him guilty of manslaughter, rejecting his position that he killed McNabb is self-defence.
The Facts
The facts were depressingly sordid: Forde and McNabb were both drug dealers. McNabb found out that someone who owed him a drug debt would be at Forde’s residence. McNabb decided to go to Forde’s residence to collect the debt. Upon arriving he entered the bedroom, where he got into a physical altercation with Forde’s common law spouse. At that point Forde entered the bedroom and began to argue with McNabb. McNabb pulled out a knife and threatened Forde with it. Forde, however, was prepared. He had numerous knives in various locations at his home for occasions such as this. He grabbed a knife conveniently hidden in the bedroom closet.
When the police arrived, McNabb was dead; they found him on the floor in the bedroom in a seated position with his back against a chair. He was unresponsive and had no pulse. There was a stream of blood coming from his mouth and a large pool of blood surrounding him. The cause of death: a single stab wound to the chest.
The Issue
The principal issue on appeal was whether the trial judge erred in his instructions to the jury on the elements of self defence contained in section 34(2) of the Criminal Code.
The Court of Appeal concluded that the trial judge erred in permitting the jury to consider the appellant’s failure to retreat from his home in assessing the reasonableness of the appellant’s response to the threat he perceived from McNabb. A new trial was ordered.
The Law
Self defence under section 34(2) of the Criminal Code requires the proof of three elements: (i) an unlawful assault; (ii) a reasonable apprehension of a risk of death or grievous bodily harm; and (iii) a reasonable belief that it was necessary to cause harm or death to the victim in order to avoid the same fate.
Whether the appellant was able to retreat from his apartment was made a live issue by the Crown Attorney at trial and Forde was questioned about the possibility of retreating from the apartment and avoiding the attack. In her closing argument to the jury the issue of retreat was put to the jury and they were urged to find that Forde could have retreated from the apartment if he desired.
In his instructions to the jury on the third element of self-defence under section 34(2) the trial judge told the jury to consider the availability of other options for Cedric Forde to extricate himself from the confrontation with McNabb.
What the trial judge neglected to tell the jury, and what constituted a reversible error in his charge to the jury, was that retreat is not a required element of self-defence under section 34(2) and that it is not a factor to consider when a person is attacked in his or her own home.
A Man’s Home is His Castle
Retreat in the context of the law of self-defence reflects the principle that killing or seriously injuring another person should only be sanctioned as a last resort and should not be permitted if other reasonable options are available.
However it is well-established at common law that different considerations apply where a person is attacked in his or her own home. These considerations are encapsulated in the maxim “a man’s home is his castle.”
The origins of the “castle doctrine’ lie in Lord Coke’s statement in Semayne’s case (1604), 77 E.R. 194 (K.B.) at page 195: That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.
The maxim that a man’s house is his castle has given rise to the principle that a person has the right to defend himself or herself in his or her own home without the duty to retreat from the home in the face of an attack.