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Conservative Party Leader Pierre Poilievre called Canada’s law on self-defence “vague and subjective” during an announcement on Friday in Brampton, Ont.Arlyn McAdorey/The Canadian Press
In 2011, on the federal election campaign trial, Stephen Harper’s Conservatives promised Canadians “the right to defend their property.” The next year, after his party won a majority government, Mr. Harper rewrote Canada’s law on self-defence.
The previous version, dating back to the Liberals in 2003, stated that anyone who is unlawfully assaulted, without provocation, was “justified in repelling force by force” – but no more than necessary. The response also could not be intended to cause death or grievous bodily harm.
Mr. Harper’s version, in the current Criminal Code, is more permissive: If a person reasonably believes force is being used against them or another person, or if they believe there’s the threat of force, their response is legal as long as it is “reasonable in the circumstances.”
The age-old and primal question of self-defence, and the limits thereof, is once more in the national spotlight, after an alleged break and enter on Aug. 18 in the small Ontario town of Lindsay, two hours northeast of Toronto. At 3:20 a.m., according to police and court records, Michael Breen, 41, is alleged to have broken into 44-year-old Jeremy McDonald’s apartment while armed with a crossbow. Mr. McDonald allegedly battled back with a knife.
The result: Mr. Breen was flown to a Toronto hospital, his life in peril, and Kawartha Lakes Police charged both men. Mr. McDonald, the resident, faces two charges: aggravated assault and assault with a weapon. Mr. Breen faces four charges, including one for break, enter and theft.
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Outrage ensued. The deeply emotional belief in the right to defend ourselves against injustice bashes up against seemingly technocratic legal arguments and the formal limits of the law. In the Lindsay case, some Canadians – from conservatives to liberals, from leading politicians to internet commentators – were in disbelief that a person fighting against an intruder in their home in the middle of the night could be charged with a crime.
Conservative Leader Pierre Poilievre emphasized the right to defend one’s family and home, and his party used the story in a fundraising pitch that suggested a “radical Liberal justice system” had gone haywire.
On Friday, he called Mr. Harper’s law, passed when he was part of the government, “vague and subjective.” Mr. Poilievre said the law should be rewritten again to allow use of force to be “presumed reasonable” in break-in situations where safety is threatened. But legal academics suggested on Friday that this is the reality of the current law.
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Poilievre was a part of the government when then-Prime Minister Stephen Harper passed Canada’s current self-defence law.Arlyn McAdorey/The Canadian Press
The federal Liberals responded Friday by saying Canadians already have the right to defend themselves under Mr. Harper’s law, which they pointed out was supported by Mr. Poilievre. “I trust police to lay charges and judges to consider evidence,” Justice Minister Sean Fraser said on social media.
In the Lindsay case, legal experts say it has already been closely examined by both police and Crown prosecutors.
Kawartha Police made this clear two days after the incident, when it responded to the widespread attention by highlighting that investigators had weighed more evidence than was public before laying charges, adding that the right of self-defence is “not unlimited in Canada.”
Opinion: Break into my home at your own risk
Amar Khoday, a law professor and associate dean at the University of Manitoba’s Faculty of Law, noted the onus is on the Crown to prove, beyond a reasonable doubt, that actions taken in self-defence were unreasonable.
“I understand the intuition people feel,” Prof. Khoday said of the public response to such cases. Discussing the limits of the law, he gave the example of a situation where an assailant is subdued but what started as self-defence morphs into a continued assault.
Noah Weisbord, a McGill University law professor whose work on self-defence has been cited by the Supreme Court of Canada, said the current law provides “a lot more leeway for use of force” than before Mr. Harper rewrote it.
It appears clear the police and the Crown believe the response of Mr. McDonald, the resident, went beyond self-defence and was not, in fact, reasonable in the circumstances, Prof. Weisbord said. “That’s the crux of the law.”
The charges have not yet been tested in court, and similar cases have not made it that far. In 2023, a second-degree murder charge was dropped five months after it was laid against Ali Mian of Milton, Ont., who had been accused of shooting an intruder. In Halifax, police decided that same year not to charge the occupant of a residence for a homicide that happened during a home invasion.
Poilievre wants Criminal Code to define ‘reasonable’ self-defence
Michael Plaxton, a law professor at the University of Saskatchewan, has posted in-depth legal analysis about the Lindsay case on social media. Among his general observations: The law was not “devised by some progressive wingnut.”
Prof. Plaxton said a person who breaks into a home does not have the law on their side, but “cannot be killed with impunity.” Of people acting in self-defence, he said “some degree of overreacting is understandable,” and courts have recognized that there aren’t expectations of “cool-headed calculations” in such intense moments. But, he added, there should be legal room to consider the resident’s response.
“Homes are not morality- or law-free zones,” he wrote.
In an interview, Prof. Plaxton said that the reasonableness standard the Conservatives wrote into the law “loosens things up quite a bit” and that even if a case goes to trial, “the jury is going to be sympathetic to you.”
The federal law has been assessed at the Supreme Court. Unlike the fate of other tough-on-crime legislation enacted by Mr. Harper’s government that was ruled unconstitutional, a 2021 ruling on self-defence clarified only part of the law and how judges are to instruct juries. The case involved an Ontario man, Peter Khill, who killed a man breaking into his truck outside of his home during the night. Mr. Khill loaded a shotgun, went outside and shot the man.
At his first trial, at the Ontario Superior Court of Justice, a jury found him not guilty. Later, the Supreme Court focused on one of the factors in the self-defence law – a person’s “role in the incident.” The top court said this must be considered “from beginning to end” and ordered a new trial. Mr. Khill was eventually convicted and sentenced to six years in jail.
Back in Lindsay, the break-and-enter case may be far from finished, depending on whether it reaches trial. Prosecutors can and sometimes do pull charges midway through the legal process. The threshold is a reasonable prospect of prosecution; if that erodes as a case proceeds, the Crown will drop a case.
For now, police and the Crown have decided the threshold has been met.
“This is a traumatic situation,” said Steven Norton, lawyer for Mr. McDonald, the resident charged with assault. “My client was doing what anyone would do if they were in his situation.”
