Understanding Canadian Criminal Law

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Self Defence: a person attacked in the home need not retreat

burglary_1014464c_optEarlier this week, the Ontario Court of Appeal released their ruling in R. v. Docherty, 2012 ONCA 784. The central issue in Docherty was whether the trial judge improperly instructed the jury that a person under attack has a duty to retreat from their home in order to assert a legitimate claim of self-defence.

Kenneth Docherty killed Tyson Weber by stabbing him seven times in the neck during an altercation inside the garage attached to Docherty’s home.

Webber and an associate were loan sharks and Docherty owed them a significant amount of money. In their attempts to collect the outstanding debts, the men would threaten Docherty telling him that they would break his legs or kill him if he didn’t pay them.

On the day of the stabbing, Webber came to Docherty’s home in a final attempt to collect they money owed to him and his associate. It was during this final interaction that Docherty stabbed and killed Webber.

During the trial, the Crown played a statement Docherty made to the police within hours of the killing in which he admitted intentionally killing Weber but asserted that he had acted in self-defence and that he feared his life was in danger.

At the close of Docherty’s trial, both the Crown Attorney and the Judge told the jury that Docherty’s failure to retreat from his own home was a factor they could consider in determining whether or not he acted in self-defence.

The question for the Ontario Court of Appeal to decide was whether there exists a duty to retreat from one’s own home in the face of an attack?

In a unanimous ruling which overturned the conviction for manslaughter, the Court of Appeal concluded that no such duty to retreat from one’s home exists at law. Citing some of the Court’s earlier decisions, they affirmed that while self-defence can typically be accepted only as defence of last resort and is not available where other reasonable options are available, different considerations apply where a person is attacked within his or her own home.

In that situation, the ancient common law castle doctrine gives rise to the principle that a person has the right to defend him or herself in his or her own home without the duty to retreat from the home in the face of an attack.

The castle doctrine rests on the idea that the home provides protection for a person, his family and his possessions and that mandating a duty to retreat would force people to leave the security of their home, leaving their family members exposed to danger and their belongings vulnerable to theft. The castle doctrine also involves the idea that one’s home is the last refuge, the last line of self-defence.

The Court did suggest that it will still be open to the judge or jury to consider what other steps were taken by the person under attack within the home to avoid confrontation but that retreating from the house is not required to assert a valid self-defence claim.

To learn more about self-defence, read: Changes to the Citizen’s Power of Arrest, Self-Defence and Defence Of Property Laws in Canada

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