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Self-defence in Canada: When lethal force could be legal — and when it isn’t

It was just after 5 a.m. ET on Sunday when a group of men allegedly broke into the house where Ali Mian, a 22-year-old resident of Milton, Ont., lives, according to police.

Mian, through his lawyer, alleges the men who broke in — one of whom has since been charged with unauthorized possession of a firearm —  attacked his mother. It was then that Mian allegedly shot one of them.

Police say there were multiple gunshots fired within the home, and one of the men who entered the home died.

Mian was charged with second-degree murder and is now awaiting trial.

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The high-profile home invasions — and subsequent deaths — have prompted questions about what force Canadians can legally use when someone invades their home.

The answer to that question, according to two criminal lawyers, is more complicated than blockbuster movies and popular crime television shows can make it seem.

“People get into problems where they treat these legal issues as black and white,” said Michael Spratt, a criminal defence lawyer in Ottawa.

“If someone’s breaking into your house, that doesn’t give you the right, necessarily, to apply force to them — and certainly not to apply lethal force.”

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According to these factors, the use of force in self-defence would not be considered reasonable if, for example, the home invader was a small, unarmed, 15-year-old boy and the resident was a hulking bodybuilder, Spratt said.

“You also have to look at your role in the incident,” he said.

“If I provoked you or if I have broken into your house and then you respond with force to me, can I respond with force to you, claiming self-defence? Probably not, because I have an active and unlawful role in sort of instigating the circumstances.”

The history between the two people is another factor. If the person claiming self-defence acted out of vengeance, for example, that isn’t considered reasonable — but other factors, Spratt said, such as domestic abuse, could influence a person’s belief about the reasonableness of their use of force.

The Criminal Code doesn’t force Canadians to “measure to a nicety” or respond to a threat with the exact same amount of force.

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Read Rachel Gilmore’s full story: Global News

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