The limits of self defence

Multiple reports claim that last week, in the Toronto suburb of Markham, two brothers encountered three men trying to force their way into the garage of their home in the middle of the night. An altercation ensued, and two of the three would-be intruders fled. The other was left in critical condition. Police arrived and arrested the brothers. Alexandru and Marius Truta have been charged with aggravated assault.

Much remains unknown about this case. If the Truta brothers were indeed defending their home, however, it’s far from clear that such charges will stick. Indeed, using force to drive off intruders attempting to enter your home (or the home of someone you are helping to defend) is perfectly legal. The case will hinge on how much force was used, and whether it was “reasonable.”

Should the charges against Messrs. Truta proceed to trial, we will be watching

Two men who reportedly critically injured an intruder in their home will test Canada’s new law

with interest. Canada’s laws of self-defence and citizens arrest were simplified amid much fanfare just last year. This will be their test.

Section 35 of the Criminal Code states that defending property does not constitute an assault if those on the defensive believe on reasonable grounds that someone “is about to enter, is entering or has entered the property without being entitled by law to do so,” and intends to rob or damage that property. Finding three men trying to force their way into your garage at 4:30 a.m. would certainly qualify as reasonable grounds. In such a situation, defenders may lawfully attempt to prevent someone from entering their home or drive them from it, or try to prevent an intruder from leaving with stolen property.

But the key phrase of the section, and the one most relevant to the Truta brothers, is that even if you’re legitimately defending your property, the response much be proportional. Self-defence only applies if, as the law states, “the act committed is reason- able in the circumstances.”

That’s vague, and deliberately so. When the government reformed the laws, they did so explicitly to make it easier for Canadians to protect themselves and their property, and that meant offering maximum possible latitude for Canadians who wish to claim they were acting in self defence. “Reasonable in the circumstances” offers exactly that latitude, as it should. Law-abiding Canadians should have the law on their side when confronted by intruders in their homes. But the courts will need to set the limits.

Of course, even a broadly written law cannot encompass every action that may be committed in a self-defence situation. What exactly the Truta brothers are found to have done will be what determines their fate. Some media commentators have pounced upon the fact that the unidentified person in hospital is in critical condition, claiming the alleged intruder was “beaten within an inch of his life.”

It may eventually be determined that Messrs. Truta did use more force than would be considered reasonable. It’s also equally possible that one of the Truta brothers, outnumbered in their own garage, grabbed a baseball bat or hockey stick and scored a direct hit on his first (and only) swing, or connected solidly with a punch, and the injured party sustained his critical wound after he fell and hit his head.

Any number of other explanations are also possible. We don’t know yet. But we caution Canadians, and especially our colleagues in the media, to allow the courts to determine the facts in this notable case. Serious injuries are not proof of unreasonable force.

The Truta brothers are due in court for a preliminary hearing next month. Should this case proceed to a full trial, Canada’s new selfdefence laws can expect their first full, high-profile test. We look forward to the clarity this will bring to the important issue of what constitutes reasonable force under the new laws, and hope that lawabiding Canadians are not deterred from taking the actions necessary to safeguard their lives and property from criminal assault.