Is There A Duty To Retreat In Canada?

A very interesting topic in our criminal justice system is, is there a duty to retreat if you’re acting in self defense and there’s an opportunity for you in Canada to retreat and remove yourself from the situation? What’s the duty there? Another way of expressing this is in the states they call it, can you stand your ground? You’re at a bar given an opportunity to leave and this guy’s pushing you around and can you stand your ground? Well, it’s very interesting. It’s a gray area of law a little bit in Canada because there’s absolutely no absolute duty. You’re not required to retreat first of all, in Canada, and you can stand your ground. But the laws been interpreted in a funny way because what it says and especially for death cases, if you cause death, or grievous bodily harm to the other person the law says this, if you had an opportunity to retreat it’s something the judge can take into account regarding the reasonableness of your actions. Well, that’s pretty nebulous and gray isn’t it. So we can stand our ground but the Judge can still take into account that we didn’t retreat in the face of imminent danger and being threatened by another person and punching. I wish we just had a pure stand our ground like many states do.

So I guess it’s maybe best explained by examples. So let’s take a case I like to use the bar case where you’re at a packed bar, and the guy’s pushing you and threatening you, and maybe ultimately you’ve kind of pushed back in self-defence. And before you did that, though, there was you know, it’s pretty packed bar, but there’s a little bit of a way to retreat there for a few seconds, but you decide to stand your ground and push back and punch him. Well, in that case, there’s only a few second opportunity to retreat and you missed it and the judge is probably gonna say, Well, you acted reasonably defending yourself as long as you don’t go overboard excessive you properly stood your ground. There may be other cases though, where, for example, in a more wide open space, where two people are yelling at each other, it’s a bit of a pushing match, you probably had an opportunity to leave there’s a wide open space and eventually, he punches you and you defend yourself. Well, this is a more gray area that the courts in Canada have a difficult time grappling with this. Ultimately, you may still be able to win that case, but I just don’t like our law that says you the judge needs to consider whether you had an opportunity to retreat. So the judge has to say, Well, how long was the opportunity? When was it? It’s so nebulous and gray. I can’t stand it. And I had been involved in quite a few cases regarding this and have been able to overcome it a large but isn’t there always, like not in every case, but there’s always some little fleeting moment that you can retreat in most cases. Let’s face it, that moment might pass. I mean, there are situations where there’s no opportunity to retreat. The guy’s right in your face and grabbing you there’s no question. So anyway, that’s the gray area of our law. Really section 32 of the code addresses this issue, and I addressed this in another video. In terms of the reasonableness of your actions, one of the factors that’s considered is the extent to which the use of force was imminent. In other words, it’s right in your face the guy’s punching you. It’s happening there and not five minutes ago. And whether there were other means available to respond to the potential use of force. Well, there is the factor that the judge could potentially consider, how big how large was the opportunity to retreat? When was it? Is the person reasonable? These are all nebulous, kind of airy fairy concepts that a judge applies. I mean the bottom line is we can stand our ground but you might find yourself in an awkward situation right? If you punch the guy and he happens to die and the judge says hey you could have retreated. You acted in self defense you might end up getting convicted. It’s kind of an unsatisfactory our law in my respectful view.
Now, one other concept which was very important is in your own home there’s no duty to retreat you stand your ground, but the judge won’t even consider that you had an opportunity to retreat in your own home. You’re entitled to protect your castle, as long as you act reasonably the circumstances either protecting your goods or protecting yourself if you’re attacked by an intruder.
So it’s a pretty gray area. Ultimately, I think a lot of judges bend over backwards if you acted reasonably, even though there might have been an opportunity to retreat. If a guy’s at a bar acting reasonably and someone starts attacking you. You’re allowed to defend yourself just act reasonably. Hey, I’ll tell you though, if you have an opportunity to retreat from a fight do it. There often is let’s face it, these things escalate. Don’t let it escalate. Just remove yourself from the situation you won’t have to come in and hire a law firm like us and go through all these concepts. So that’s an interesting topic we had and I’m really glad you joined us today.