Legitimate Defence Consultation Paper - Law Reform Commission

that the decision is not in keeping with the modern authorities that require a
minimum threshold threat of deadly harm. 119
2.78 The Canadian courts appear to have taken a dim view of the
Hussey decision. In R v Baxter 120 the appellant had shot and wounded a
number of people who had come in a threatening manner onto land occupied
by the appellant and others. Rejecting the appellant’s claim that he was
entitled to use extreme force to protect his property, the Ontario Court of
Appeal questioned the authority of the English case of R v Hussey. 121 In R v
Clark 122 the appellant’s claim that he had been entitled to stab to death two
intruders in his flat was rejected on the grounds that, “although a man has a
right to defend his property, he is not entitled to kill a trespasser in the
absence of some threat to his person.” 123
2.79 The prohibition on the use of force for the protection of property
has attracted the support of a number of Canadian law reform bodies. 124
However, others have argued that it imposes an arbitrary threshold for the
use of lethal force which unnecessarily precludes the inquiry into
reasonableness and consequently could result in injustice. 125
2.80 In contrast to the approach favoured in Canada, a number of other
common law jurisdictions operate statutory defences which permit the use of
lethal defensive force in protection of the dwelling-house. Under the New
Zealand Crimes Act 1961, for example, there is no upper limit on the amount
of force that may be employed to “prevent the [unlawful] forcible breaking
119
120
121
122
123
124
125
McAuley & McCutcheon Criminal Liability (Round Hall Sweet & Maxwell 2000) at
761-762. See also, Williams Textbook of Criminal Law (Stevens & Sons 1978) at 473.
(1975) 27 CCC (2d) 96 (Ontario Court of Appeal).
The Court referred to the comment in Lanham, “Defence of Property in the Criminal
Law” [1966] Crim LR 368 at 372, that “Hussey’s case makes strange reading”.
(1983) 5 CCC (3d) 264 (Alberta Court of Appeal).
Ibid at 271.
See Law Commission of Canada Report on Recodifying Criminal Law (No 31 – 1987)
at 37-38. In its earlier Working Paper on Criminal Law: the general part – liability
and defences (No 29 – 1982) at 108, the Commission took the view that it should
reflect the principle that property has a lower value than bodily safety. See also
Report of the Canadian Bar Association Criminal Codification Task Force Principles
of Criminal Liability - Proposals for a New General Part of the Criminal Code of
Canada (1992).
Stuart Canadian Criminal Law (3rd ed Carswell 1995) at 455. A similar argument is
discussed in the Canadian Department of Justice Consultation Paper on Reforming
Criminal Code Defences: Provocation, Self-Defence, Defence of Property (1998); for
example, it might be said that a person should have the right to use deadly force to
prevent someone from stealing a deadly weapon, such as a bomb or contagious
materials.
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