If someone breaks into your house and threatens your family, what are your options? Are you compelled to submit? Is your first option to try and escape? Or if a thug accosts you on the street, how much force can you use to protect yourself or your family?
In Canada you might suspect, particularly after hearing comments from police, politicians and anti-gun proponents, that personal self-defence is not an option. In fact, the Canadian Criminal Code speaks directly to the issue. However it does lay out some fairly stringent legal responsibilities. The moral responsibilities are another discussion.
Under “Defence of Person”, the Act says:
Self-defence against unprovoked assault
(1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than necessary to enable him to defend himself.
Extent of justification
(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and
(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.
(1) Every one is justified in using force to defend himself or any one under his protection from assault, if he uses no more force than is necessary to prevent the assault or the repetition of it.
(2) Nothing in this section shall be deemed to justify the willful infliction of any hurt or mischief that is excessive, having regard to the nature of the assault that the force used was intended to prevent.
I think that if you hurt the sucker you’re going to end up in court defending your actions and the world being what it is these days, if he’s still alive he’ll probably sue you.
The section on defence of property is even vaguer on your rights.
Defence of personal property
(1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified
(a) in preventing a trespasser from taking it,
(b) in taking it from a trespasser who has taken it, if he does not strike or cause bodily harm to the trespasser.
Good luck on that! However 38(2) goes on the say that:
Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.
It gets to be a bloody game of escalation.
The clearest right to defend yourself is under Section 40, which says:
Every one who has peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.
That sounds pretty good, but is fairly specific in that it seems to speak directly to someone actually breaking in. What if you wake up in the middle of the night and find a person already in your house? Does it kick over to Section 41, which again talks about using “no more force than necessary”?
That would be my interpretation, but then I’m not a lawyer.
All of which is a roundabout way of saying that you do have the right to self-defence in Canada, but it is limited depending on the circumstances and requires a great deal of responsibility on your part if you don’t want to end up defending your actions in court. When in doubt, the courts will interpret.
The situation in the US is considerably different and many States have in the past few years strengthened their self-defence laws and as well have passed Right to Carry laws. But you still don’t have carte blanche to use deadly force, even though there are critics who are afraid that will be the result.
I don’t know what criteria all of the States have for issuing Right to Carry permits, but Kansas seems to take a common sense approach.
Any Kansan who wants to apply for a license to carry a concealed handgun is required to first pass an eight-hour course taught by a state-certified instructor. Almost half of that day of training is dedicated to the use of deadly force and its aftermath. “It exposes them to the law on the use of deadly force, and part of it has to do with preparedness for confrontations,” Sexson said.
That would seem to make a lot of sense. If you are going to license people to carry a firearm, ostensibly for the purpose of self-protection, they should understand the laws that apply and the risks that they take when they make the decision to defend themselves.
An additional risk, if you try to defend your family from what appears to be a home invasion, is a police raid. This is especially true in the US where no-knock police raids have become all too common, and where the “war on drugs” and a plethora of SWAT teams has led to home owners being, at best, assaulted and, in the extreme, killed while trying to defend themselves from what they thought were criminal invasions. The tragedy being that in most of these cases the killings being called ‘justifiable’, with the police simply doing their duty and protecting themselves.
Fortunately, to date this has not been as great a problem in Canada, as we don’t have the gross numbers of these paramilitary units as are seen south of the border. But the Swat Team mentality is certainly out there.