1. CALVIN MARTIN, QC
  2. DEFENCE WITH A FIREARM
  3. Use of a firearm.
    1. Comments.
      1. The use of a firearm to protect your own life or that of another is something that is frowned upon by the Politicians, the Justice Bureaucrats and the Police. I, personally cannot understand that attitude but it is there. If you have to shoot someone to survive your troubles are just beginning.
      2. First of all, the regulations under C-17 do not allow you to load your gun or have a loaded gun in defensive circumstances so you will almost certainly be charged with a breach of that regulation. The defence of necessity, however, will very likely be available to you.
      3. Now, let us look at all the other ways they will try to get you. Forget about the presumption of innocence in criminal charges. That only works if you are a real criminal. If you shoot, there will be a reasonable presumption that you intended to cause death or grievous bodily harm.
      4. You are going to have to prove that you had reasonable grounds for believing that shooting was the only way to protect youself, or someone else whom you wanted to protect, from being killed or seriously injured by someone who was attacking or was about to attack, or that you had reasonable grounds for believing that shooting was the only way to stop that person from breaking into your house or was the only way to get him to leave after he had broken in.
      5. You will almost certainly be charged after the event and your reasonable grounds for your beliefs will be aggressively challenged.
      6. Let's look at reasonable grounds for belief in real life situations. You should know that studies have shown that a fast man with a knife who is 21 feet from you can get to you and stab you in 1.5 seconds. This means that if you are a policeman with a holstered gun you will not be able to draw and shoot in time to save yourself. If your gun is in your hand you will not have much time to decide to shoot and you may get stabbed anyway.
      7. A man with a club or a knife can kill or maim you very easily and very quickly depending on how close he is. A powerful man, even without a weapon, can kill or maim the average person very easily and very quickly depending on how close he is. An average man, even without a weapon, can kill or maim an average woman very easily and very quickly depending on how close he is.
      8. The average man does not realize how vulnerable he is to a person who intends to kill or maim him. The aggresssor does not have to be fair.
      9. Knowing all of this will help to keep you alive in such circumstances but after you are charged you have to expect that it will be up to you to produce experts who will prove those simple truisms. The average judge or member of a jury has never been exposed to such danger and will find it hard to grasp that kind of danger without strong evidence and demonstration.
      10. Even considering all of that, I am still stubborn and old fashioned enough to believe that it is still better than allowing yourself or someone else to be killed or maimed by an aggressor. I believe that any normal human being would agree with me.
      11. I have appended a complete summary of the relevant provisions of the Criminal Code to these comments.
  4. Reasonable apprehension of death or grievous bodily harm.
    1. 34(2) Criminal Code
      1. 34(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
      2. he causes it under reasonable apprehension of
      3. 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.
    2. Comment.
      1. You cannot repel an assault by shooting unless you believe on reasonable grounds that there is no other way to prevent yourself from being killed or seriously injured by someone.
  5. Preventing assault.
    1. Section 37 Criminal Code.
      1. 37(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. 37(2) Nothing in this section shall be deemed to justify the wilful 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.
    2. Comment.
      1. Shooting could hardly be excessive use of force if you reasonably believed that you could not stop the assault in any other way.
  6. What is assault?
    1. Section 265 Criminal Code.
      1. 265(1) A person commits an assault when
      2. without the consent of another person, he applies force intentionally to that other person, directly or indirectly;
      3. he attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that other person to believe upon reasonable grounds that he has, present ability to effect his purpose; or
      4. while openly wearing or carrying a weapon or an imitation thereof, he accosts or impedes another person or begs.
    2. Comment.
      1. It is very important here to see that you do not have to wait until someone actually stabs you or hits you with a club or shoots you before you can repel an assault.
      2. Eg. A man 21 feet away from you with a knife in his hand is assaulting you if he starts to move towards you in a threatening way.
      3. Eg. A man 21 feet away from you even with no weapon in his hands is assaulting you if he moves towards you in a threatening way if you reasonably believe that he has the ability to hurt you.
  7. What if you provoke an assault?
    1. Section 35 Criminal Code.
      1. Section 35. Every one who has without justification assaulted another but did not commence the assault with intent to cause death or grievous bodily harm, or has without justification provoked an assault on himself by another, may justify the use of force subsequent to the assault if
      2. Section 35 (a) he uses the force
      3. Section 35 (a)(i) under reasonable apprehension of death or grievous bodily harm from the violence of the person whom he has assaulted or provoked, and
      4. Section 35 (a)(ii) in the belief, on reasonable grounds, that it is necessary in order to preserve himself from death or grievous bodily harm;
      5. Section 35 (b) he did not, at any time before the necessity of preserving himself from death or grievous bodily harm arose, endeavour to cause death or grievous bodily harm; and
      6. Section 35 © he declined further conflict and quitted or retreated from it as far as it was feasible to do so before the necessity of preserving himself from death or grievous bodily harm arose.
    2. Comment.
      1. If you start something that gets out of hand you have try to get out of it before you can shoot to defend yourself even though you reasonably believe that you are going to be killed or maimed and cannot defend yourself successfully any other way. This is designed to prevent people from starting fights
      2. and using that as justification to use force in an escalation of the conflict. No one with a firearm should ever be involved in this type of scenario.
  8. Enforcement of the law.
    1. Section 25 Criminal Code.
      1. 25(1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law
      2. as a private person,
      3. as a peace officer or public officer
      4. in aid of a peace officer or public officer, or
      5. by virtue of his office,
      6. is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose,
      7. 25(3) Subject to subsection (4), a person is not justifed for the purposes of subsection (1) in using force that is intended or is likely to cause death or grievous bodily harm unless he believes on reasonable grounds that it is necessary for the purpose of preserving himself or any one under his protection from death or grievous bodily harm.
    2. Comment.
      1. Grievous bodily harm means serious hurt or pain. You are not expected to measure the force you use with exactitude.
  9. Citizen arrest.
    1. Section 494 Criminal Code.
      1. 494.(1) Any one may arrest without warrant
      2. a person whom he finds committing an indictable offence; or
      3. a person who, on reasonable grounds, he believes
      4. has committed a criminal offence, and
      5. is escaping from and freshly pursued by persons who have lawful authority to arrest that person.
      6. 494(2) Any one who is
      7. the owner or a person in lawful possession of property, or
      8. a person authorized by the owner or by a person in lawful possession of property, may arrest without warrant a person whom he finds committing a criminal offence on or in relation
      9. to that property.
      10. 494(3) Any one other than a peace officer who arrests a person without warrant shall forthwith deliver the person to a peace officer.
  10. Defence of dwelling or real property.
    1. Section 40 Criminal Code.
      1. Every one who is in 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.
    2. Section 41 Criminal Code.
      1. 41(1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.
      2. 41(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.
    3. Comment.
      1. If you have reasonable grounds to believe that the only way to stop a person from breaking into your house is by shooting, then you are justified in doing so.
      2. If you have reasonable grounds to believe that the only way to remove a trespasser is by shooting, then you are justified in doing so.
  11. Defence of personal property.
    1. Section 38 Criminal Code.
      1. 38.(1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified
      2. in preventing a trespasser from taking it, or
      3. in taking it from a trespasser who has taken it,
      4. if he does not strike or cause bodily harm to the trespasser.
      5. 38.(2) 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 it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.
    2. Section 39 Criminal Code.
      1. 39.(1) Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary.
      2. 39.(2) Every one who is in peaceable possession of personal property, but does not claim it as of right or does not act under the authority of a person who claims it as of right is not justified or protected from criminal responsibility for defending his possession against a person who is entitled by law to possession of it.
  12. Use of force to prevent the commission of an offence.
    1. S 27 Criminal Code.
      1. 27. Every one is justified in using as much force as is reasonably necessary
      2. for which, if it were committed, the person who committed it might be arrested without warrant, and
      3. to prevent the commission of an offence
      4. that would be likely to cause immediate and serious injury to the person or property of anyone; or
      5. to prevent anything being done that, on reasonable grounds, he believes would, if it were done, be an offence mentioned in paragraph (a).
    2. Comment.
      1. You could shoot to prevent someone from committing a serious offence (or something that you reasonably believed would be a serious offence) that would be likely to cause immediate and serious injury to the person or property of anyone only if you, on reasonable grounds, thought it was the only way to prevent it. That would then make that force reasonably necessary.
  13. Repel force by force.
    1. S 34(1) Criminal Code
      1. 34(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 is necessary to enable him to defend himself.
    2. Comment.
      1. This has to be read with 34(2).
      2. This does not relate to an assault where you believe on reasonable grounds that there is no other way to prevent yourself from being killed or seriously injured by someone.
  14. Excessive force.
    1. S 26 Criminal Code
      1. Every one who is authorized by law to use force is criminally responsible for any excess thereof according to the nature and quality of the act that constitutes the excess.
    2. Comment.
      1. Shooting would not be an excess if you, on reasonable grounds believed that it was the only way to stop yourself or others from being killed or maimed.
  15. Pointing a firearm.
    1. Section 86(1) Criminal Code.
      1. 86(1) Every one who, without lawful excuse, points a firearm at another person, whether the firearm is loaded or unloaded,
      2. is guilty of an indictable offence and liable to imprisonment ...
    2. Comment.
      1. Self defence or the defence of another or the defence of your property is a lawful excuse.