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Iain Abernethy
Iain Abernethy's picture
Canadian Court of Appeal Self-Defence Ruling

Within the last few weeks there has been a Canadian Court of Appeal decision that seeks to clarify the law around how the courts handle self-defence cases. Essentially, the need to view these cases from the perspective of the person defending themselves has been emphasised:

“The court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection.” - Justice Peter Lauwers

I though this may be on interest to our Canadian members and readers:


All the best,


canadianlawyermag wrote:
Friday, 24 June 2016: A recent Court of Appeal decision clarifies the law around how the courts handle self-defence cases, say lawyers.

The Ontario Court of Appeal has ordered a new trial for Valter Cunha, who was convicted for shooting another man twice, but claimed he was acting in self-defence.

In R. v. Cunha, Justice Peter Lauwers said the court found that the trial judge’s analysis was deeply flawed as it “paid little regard to the overall evidence, but focused excessively on whether Mr. Cunha was a credible witness.”

Cunha made a split-second decision to shoot the man after an altercation in his building, according to the decision. The man had his back to Cunha, who had told the man to freeze. The man began to turn around and Cunha shot him.

The trial judge dismissed Cunha’s testimony where witnesses could not verify his account, but Lauwers said this analysis was unreasonable. In the appeal decision, he stated:

"The court must be alive to the fact that people in stressful and dangerous situations do not have time for subtle reflection.”

Lauwers said the trial judge “artificially separated out the sequence of events.”

Cunha’s defence lawyer, Michael Dineen says the way the trial judge scrutinized Cunha’s statements and analyzed the events was unfair.

“That’s just the wrong way to look at this,” says Dineen.

“People in that sort of life-and-death situation have to be given some leeway before we’re going to impose criminal liability on them for split second decisions.”

Dan Stein, a criminal defence lawyer says it is important for trial judges and juries to put themselves in the shoes of the accused.

“It reaffirms that people who are in a position where they feel they have to defend themselves aren’t required to take absolutely every step in a very measured way,” Stein says of the decision.

“There’s some understanding that in the heat of the moment, people will do what’s necessary to defend themselves, which in retrospect might not be reasonable simply because at the time they were afraid for their lives.”

Lauwers found the trial judge also made inconsistent findings with respect to Cunha’s state of mind.

Cunha had said he did not know whether the man was armed, but feared he was. The trial judge said he was left with a reasonable doubt about whether Cunha felt afraid that the man was armed, but then later said that Cunha did not believe the man was using or threatening force against him.

Lauwers said that overall the trial judge failed to take into account the situation from Cunha’s perspective and that he artificially separated related events.

“This case reaffirms the principle that life has to be analyzed as a flowing narrative that can’t be reduced to a freeze-frame analysis,” says criminal trial lawyer Sam Goldsmith.


Leigh Simms
Leigh Simms's picture

Thanks for sharing Iain! 

For everyone reading this from England and Wales I feel this thread is a good place to note that we had a very similar ruling in the case of Palmer (1971). In this case the Judge said: - 

"If there has been an attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a Jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

Very similar decisions being made in the above cases and it is great to see that the courtrooms are not as "removed" from the realities of violence as some people think!


Chris Wheeler
Chris Wheeler's picture

I've read a part of the R v Cunha decision. As a Canadian, I find it very disconcerting that Cunha used his registered handgun to shoot someone. In Canada, a registered handgun is only allowed for target practice, and must be stored in a locked box, unloaded, and seperate from ammunition. The fact that this fellow unlocked the gun, loaded it, and then went searching for the incident seems a bit outside the realm of self-defence, to me.

Chikara Andrew
Chikara Andrew's picture

It sounds like the Canadian case is more along the lines of the Tony Martin case, which isn't a particularly useful reference for UK self defense. Other than potentially an example of what is not considered "self defence" albeit the case is further muddled by mental health and "diminished responsibility".

If I understand what you have written Chris this is a case of someone, Cunha, shooting at an intruder with a firearm that he could not lawfully have had on his person in a loaded state.

In which case it is similar to the Martin case, he made the decision on feeling threatened that his best response was to pickup a (unlawfully held) shotgun and shoot at the intruders. The UK courts decided that this was not self defence and charged him with murder. It sounds as if that what happened in this Canadian case, albeit the appeal court has decided that it could be considered self defence. Subject to the outcome of a retrail though, so some way to go. 

The case I tend to refer to when discussing this, mainly because of the complications of the Martin case ie. firearm/metal health. Is the case of Munir and Tokeer Hussain who, along with family members were subject to a terrifying ordeal at the hands of intruders. One family member managed to escape and alert others, the intruders fled however Munir and Tokeer Hussain managed to catch one of the intruders and subjected him to a vicious assault with a cricket bat some distance from the house. The court ruled that they were not acting in self defence, the intruder have already fled. 

arogers's picture

Just came across this and wanted to chime in with some additional information on context as I think that some of the discussion above may give future readers an incorrect view of what occurred in this case, and as a result a compromised impression of what this case says about self defence.  I am a Canadian lawyer although not a criminal lawyer.

The Canadian Lawyer article summarizes the basis of the appeal decision but not the facts.  If you read the full case, you'd understand why it was a good case of self-defence despite the use of a registered handgun.  The accused (and his friend) broke up an attack outside his house and helped the man that was being attacked inside.  They heard one of the attackers yell "shoot him, shoot him".  The accused got his gun, went to the back door and saw one of the attackers walk past it with a shotgun.  There was also evidence that the attackers either kicked in or attempted to kick in a door which was noticeably damaged.  The accused went outside and saw the other attacker (not the one with the shotgun) with his back turned and hands concealed.  He told the victim to freeze, and instead the victim turned around quickly upon which the accused shot him twice.

Understanding these facts, which the appeal court essentially boiled down to a homeowner being confronted with one, possible two armed men at his house and appearing to be ready to shoot someone, it is easier to understand the court's findings that the accused had a reasonable belief that he was in danger from the victim, even though that belief was not correct.

Iain Abernethy
Iain Abernethy's picture

arogers wrote:
The Canadian Lawyer article summarizes the basis of the appeal decision but not the facts.  If you read the full case, you'd understand why it was a good case of self-defence despite the use of a registered handgun ...

Thanks for the extra info! Is there a good link to a reputable news report of the event?

All the best,