The Right of Confrontation: A Person Need Not Retreat From Their Home to Establish Self-defense

October 8th, 2015 by

The right of self-defense against a physical attack is codified in s.34 of the Criminal Code. Section 34 states that a person is not guilty of an offense if they believe on reasonable grounds that they are being attacked and they use a reasonable amount of force to repel the attack. Section 34 can shield a person from charges ranging from simple assault all the way to homicide.

Although s.34 was amended in 2012, the law in this regard has remained clear: a person’s use of force to repel an attack will not be reasonable if they have a means to escape the attack without using the force. One cannot avail themselves of s.34 if they had a reasonable means to ‘walk away’. However, does this apply to a person in their home? Does a person have a duty to retreat from their home to prevent an attack on themselves?

In R v. Docherty, 2012 ONCA 784, the Ontario Court of Appeal confirmed that there is no common-law duty to retreat from a person’s home to prevent an attack. In Docherty, the defendant had admitted to police that he had killed the deceased by stabbing him in the neck while they were in the defendant’s garage. However, Mr. Docherty claimed that the deceased had come to collect some outstanding debts, the conversation went south, and the deceased attacked him. He claimed he had no choice but to stab the deceased in the neck. When put to his plea, he claimed he was acting in self-defense.

At trial, the judge told the jury that they could consider the fact that Mr. Docherty had not left the home when determining whether his use of force was reasonable in the circumstances. After the defendant was convicted, he appealed. The Court of Appeal held that the trial judge was incorrect in his instruction and that, based on the Castle Doctrine, he should have told them that there was no duty to retreat from one’s home in the face of an attack. Rooted in Semayne’s Case, and affirmed by the Court of Appeal in R v. Forde, 2011 ONCA 592, the principle rests on the notion that a man’s home is his castle, and protects him, his family and his possessions; in many respects, it is a man’s last refuge and defense. Thus the law would be wrong to create duty to retreat from one’s home and refuge, leaving his family defenseless and his possessions vulnerable to theft.

The Court felt that the judge’s error in this respect was not harmless and could have affected the verdict. As such, they set aside the conviction and remitted the matter back for a new trial.

For more information regarding the law of self-defense and how it may apply to you, or if you have been charged with a criminal offense, contact the experienced criminal law team at Devry Smith Frank LLP.


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