Michael Ford (post until Oct. 31/19)
Criminal

Preparation key to successful self-defence argument: Daviau

Self-defence homicide is developing in Canada, as two recent cases show — but it's not a simple tactic for a criminal defence team to apply, says Toronto criminal lawyer Lindsay Daviau.

“What you’re entitled to do is if you believe on reasonable grounds that force is being used against you or the threat of force is being used against you or another person and you react in defending yourself or that other person, you’re entitled to use as much force as ‘reasonable in the circumstances,’” says Daviau, who practises with Rosen & Company Barristers.

“It’s not about meeting the force that is being used against you, it’s about what’s reasonable in the circumstances,” she tells AdvocateDaily.com. 

“While arguably it’s a little bit broader and gives people a little bit more room, I still think it’s not as if self-defence is a go-to defence,” Daviau says. “You still need to analyze all the actions and you still need to be able to account for what you did and why you did it.”

She points to two recent matters where men were acquitted after being charged in shooting deaths that occurred during theft attempts — one in Battleford, Sask. and the other in Hamilton, Ont.

Daviau says the federal government repealed self-defence sections in the Criminal Code in 2017, relying instead on the 2012 Citizen's Arrest and Self-defence Act with the intention that it would simplify the self-defence provisions.

The changes encompass both the defence of person and the defence of property, she explains.

The intention was to make the law “less problematic” in cases such as home invasions or other acts of violence, Daviau says.

“But of course the question has become what is considered reasonable in the circumstances,” she says.

And circumstances may include the location of the incident, such as in rural areas where police response times may be longer than in an urban locale, Daviau says.

“Maybe the reasonable circumstances in Alberta are different than what are reasonable in downtown Toronto,” she says.

“Certainly the test, because it is so broad or because it’s phrased in that way, allows for different circumstances being treated differently,” she says.

Daviau says she thinks it will be interesting studying an event in minute detail — an incident that occurred within seconds and the perceptions of the event by people who were involved and trying to determine what is reasonable in the circumstances.

“We’re talking about seconds, we’re talking about reaction,” she says. “If you find yourself an accused and someone was killed, what was reasonable to you in the sobering light of day might not appear reasonable to others.”

“I still think it has its limitations,” Daviau says. “I don’t want to leave the impression it’s an easy defence. People will point to what happened in Hamilton, what happened out West. It’s not such an available defence that anybody can use it.

“When you’re in the realm of self-defence, you have no other option,” she says. “If it’s reasonable in the circumstances, then one would presume you really had no other option. If you had an option to leave unharmed and you didn’t, then arguably it’s not reasonable,” she says.

“It certainly brings up an interesting argument about the availability of firearms,” Daviau says. “If you have a firearm and you know the perpetrator isn’t armed or has a bat, was it reasonable for you to use the firearm? I would argue that it depends upon the circumstances in the sense of how close you were to the person. Where were you when you fired the shot? Were you in a space you couldn’t escape from?”

She says the new Criminal Code provisions allow for the circumstances to deal with scenarios where an intruder doesn’t have a gun, but the resident does. “It doesn’t make the use of the gun unreasonable.”

In the Hamilton case, the homeowner’s belief that the other person had a gun is one of the circumstances the jury had to consider, Daviau says.

“We don’t have the same rights as in the U.S. in the sense that if someone shows up uninvited onto to your property, you’re entitled to shoot him,” she says. “That’s not the law here, nor should it be. But you’re starting to see cases where you have unarmed people on properties and they’re being shot at.

“To what extent are you able to defend yourself from a perceived attack?” Daviau asks.

She says people who find themselves charged in a possible self-defence situation should turn to counsel with experience in homicide trials.

“People get confused between provocation and self-defence,” Daviau explains. “They are two very different defences. Self-defence can get you acquitted. Provocation can reduce murder to manslaughter.”

Sometimes, however, they go hand-in-hand, she says.

The defence team has to rely on more than a statement claiming self-defence while testifying.

“There has to be a real consideration of the circumstances,” Daviau says.

The key to a robust defence is gathering information and evidence that supports the client’s account, she says.

“You need to start early in the brief. You can’t wait until a week before trial,” Daviau says. “You need to prepare the client to testify because if they’re going to raise self-defence, they are going to have to get into the witness box and they better be prepared to testify.

“You’re going to need counsel who is able to do that because if the jury or the judge doesn’t believe your story, you’re not going to be able to rely on that defence,” she says. “I think who you choose as a lawyer is important from that perspective.”

Daviau offers a final piece of advice relating to the beginning of any case — the arrest.

“Even if it’s self-defence, my advice to my client is to say nothing,” Daviau says. “Let the lawyer put the story together. The arrest is not the time to plead your case.”

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