Self Defence Law in Canada: Retreat or Not to Retreat?

Justices Sharpe, Simmons, and Epstein JJ.A. held that, in short, a person is not required to “retreat” from his own home and was not something that the trial judge should have let the jury consider in their deliberations that ultimately returned a verdict of guilt on manslaughter. He was sentenced to a total of 12 years by the trial judge.

Self-defence, provocation, and the need to retreat.

The facts of this case stem gave rise to a charge of second-degree murder. The trial was held before a jury in Brampton, Ontario. Mr. Docherty killed the deceased, Tyson Weber, by stabbing him seven times in the neck. This all took place in a garage attached to Mr. Docherty’s home. Although Mr. Docherty did not testify, he did explain in a statement to police that he intentionally killed the assailant but claimed self-defence and provocation.

Although it was agreed by all parties that self-defence under section 34(2) of the Criminal Code should have been left with the jury to consider, what was highly contentious was whether or not the judge ought to have included in her charge the fact the appellant did not retreat from his some as a factor for them to consider on the issue of self-defence.

Section 34(2) of the Criminal Code does not mentioning “retreat

The Court of Appeal pointed out that section 34(2) makes not mention of “retreat” and that there is a very strong line of authority that a person is not required to retreat in the face of an attack in his or her own home. (See paragraph 21).

In a footnote, the Court of Appeal also points out that

“Bill C-26, as yet to be proclaimed, significantly re-writes the statutory definition of self-defence. Bill C-26 makes no explicit reference to retreat but does provide that a factor to be considered in determining whether the “act committed is reasonable in the circumstances” is “the extent to which…there were other means available to respond to the potential use of force”.

In this case, the Court of Appeal makes it very clear that not only is a duty to retreat not mention under the relevant self-defence provision of 34(2) in instances where the accused is not an initial aggressor. Conversely, section 35 does mention the issue of retreat but this is only in situations where the accused was the aggressor or provoked an assault upon themselves. The Court of Appeal stated:

[31] Where self-defence arises in circumstances, such as the present case, where the deceased was the initial aggressor and thus self-defence turns on the application of s. 34(2), there is no requirement that an accused person retreat from the initial assault: see R. v. Cain, 2011 ONCA 298, 278 C.C.C. (3d) 228 at para. 9, discussed in greater detail later in these reasons. [Emphasis added]

Similarly, the Court also pointed out that there is no obligation to retreat from one’s own home. They point out that this is a second and distinct doctrine on the notion of retreat. They pointed out that this was dealt with in the recent case of R. v. Forde, 2011 ONCA 592, 277 C.C.C. (3d) 1.Ultimately the Court concluded that the judge’s instructions were defective and necessitated a new trial on the manslaughter charge since the jury was told that his failure to retreat was a factor the jury could consider, all without further explanation on what that means.