After a recent homicide in Halifax resulted in no charges being laid, two lawyers say there’s a lot to consider when looking at how self-defence laws work.
Just before 7 p.m. on Dec. 30, police found a 26-year-old man suffering from stab wounds in the 3100 block of Robie Street.
Anthony Robert Herritt died at the scene, and his death has been ruled a homicide by police.
Halifax Regional Police alleged earlier this week that two men were invading a home when they were confronted by an occupant of the residence, who fatally stabbed one of them.
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One man was charged with breaking and entering, possession of a weapon dangerous to public space, wearing a disguise and breach of probation. No charges were laid in relation to the death.
During a media availability, spokesperson Const. John MacLeod said it was not a random incident.
“Is it considered self-defence? … That term is a difficult thing to consider,” he said.
“What our investigators need to do is look at the evidence before them, gather up all the information they have and determine whether or not charges would be appropriate. And in this case, at this time, our investigators are not considering any charges.”
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Police said one person involved in the home invasion had previously been to the home, but didn’t elaborate on the relationship to the homeowner.
Sections 34 and 35 of the Criminal Code of Canada establish that a person is not criminally culpable while defending themselves or their property.
It notes the act committed should be “reasonable in the circumstances.”
The Criminal Code was amended in 2016, which helped simplify definitions, said Dalhousie University Schulich School of Law professor Archie Kaiser.
“You can use force all the way up to lethal force,” he said. “That, again, depends on the presence and level of intensity of the factors that parliament has set out.”
Those factors include, but are not limited to:
- The nature of the force or threat, and its imminence;
- Whether other means could have responded to the threat;
- The role of the person using self-defence in the incident;
- The involvement of weapons;
- The size, age, gender and physical capabilities of the assailant;
- Prior relationships between those involved.
But Kaiser said if excessive or unreasonable force is used, then you become criminally culpable for harm caused.
“You would go from someone who would be involved in non-culpable homicide to culpable homicide, which could be murder or manslaughter,” he explained.
The act must also be in direct response to the imminent threat – not for revenge or punishment.
“Your response is supposed to be measured,” said Ontario defence lawyer Edward Burlew, who practices across the country.
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“If I’m the person being assailed, I’m the victim and I’m going to defend myself,” he said.
“And my actions may play a part in assessing whether or not my actions were reasonable.”
In the case of what happened on Robie Street, Burlew said there were a lot of “missing facts” that have not yet been released to the public.
However, he said it’s likely that, due to the severity of the case, Crown attorneys were probably involved and would have paid “particular attention” to the circumstances.
Kaiser said police are not required to give a precise legal explanation as to why charges are pursued or not, but noted they, along with Crown attorneys, would look at whether there is a likelihood of conviction or if there is a public interest in prosecuting the case.
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