Opinion: Let's Honour the Castle Rule
Opinion: Let's Honour the Castle Rule
At the outset, I must emphasize, much of this post is an expression of nothing more than my personal opinion. The law with respect to self defence is that the defensive response must be reasonable and proportionate. While I generally agree with these principles, my opinion is that they arguably ought not to apply when it comes to break and enter or home invasion incidents that intrude on one’s home sanctuary.
In Canada, self defence is not without its limitations. One might even say that self defence is extremely limited.
On the surface, limitations to self defence are generally sound, but in the opinion of this Calgary criminal lawyer, limitations should be far less strict when a person is responding to break and enter or home invasion of one’s own home sanctuary. Additionally, I have some difficulty with the idea that self defence is measured by person’s (such as lawyers, police and judges) who have the benefit of a quiet reflection that clearly did not exist for the person acting in the heat of the moment. In short, there are certain kinds of situations where an ordinary person might very well be deprived of faculties that he or she would have in an environment of peaceful debate or contemplation.
The Kawartha Incident
On August 20th, 2025 Calgary City News reported about an incident where a Kawartha homeowner was charged as a result of an altercation that occurred during a break and enter into his home.
https://calgary.citynews.ca/2025/08/20/kawartha-lakes-police-alleged-assault-homeowner-arrest/
As reported:
The resident of the apartment had woken up to find another man inside his home. There was allegedly an altercation, and the intruder suffered serious, life-threatening injuries. He was then airlifted to a Toronto hospital.
The homeowner, a 44-year-old man from Lindsay, has been charged with aggravated assault and assault.
The alleged intruder, a 41-year-old Lindsay man, was already wanted by police at the time of the incident and is facing additional charges of possession of a weapon for a dangerous purpose, break and enter, theft, mischief under $5,000, and failure to comply with probation.
The Ancient Castle Rule
To clear, I very much doubt that the resident – living in the sanctity of his own home – was aware that the intruder was wanted on several charges (break and enter and possessing weapons). But isn’t this the point? The resident doesn’t know anything about the party entering his or her own home sanctuary; rather, all the resident knows is that there is somebody, who is not permitted to be there, invading their home sanctuary. As a starting point, do the best you can to imagine how frightening this situation would be.
The principle from Semayne’s Case, (1604) 5 C.O. Rep. 91 that “a man’s home is his castle” – meaning, not even the King has the right to invade the sanctity of the home without prior judicial authorization, has consistently been neutered over time in Canada. While the axiom that a person’s private dwelling house is to receive the highest protection in law is oft mentioned in court decisions, but unfortunately its application is usually followed by a resounding “but”. In legal terms, the “but” is the “exception”. While I don’t agree that everything that follows the word “but” is generally “horses**t”, I think there are good reasons to suspect that some of what follows the word “but” is “horses**t”.
Interestingly, in R. v. Silveira, 1995 2 SCR 297, the majority of the Supreme Court attenuated the castle rule if “exigent circumstances” for State action exist. As stated, “[e]xigent circumstances, both under the common law and under the Charter, have always been held to constitute an exception to the axiom “a man’s home is his castle” (para. 102). In other words, a man’s home is his castle “but” if exigent circumstances apply, the police are authorized to enter.
Exigent Circumstances: Police action vs. the home occupant
I have to agree that If police truly have exigent circumstances, breaking down the door of a private dwelling house ought to be be justified. For example, in the case of the Kawartha resident, had the police been called to the residence and heard the sound of a life or death struggle, of course, entering the home sanctuary should be permitted.
Now, let me use a “but”.
What is interesting is that where the principle of “exigent circumstances” is used by courts to authorize police action in relation to a person within their own home, that same principle arguably does not apply to that very same person to justify action within his or her own home. In other words, if the State is faced with an emergency (exigent circumstances), they can lawfully enter your home, but if you are faced with an emergency, having to resist or repel an intruder who is invading your castle, you better ensure that you do so in a relatively contemplative manner so you don’t get yourself in more trouble. While police in principle cannot act with ultimate impunity when entering a home, neither can the homeowner act with absolute impunity within his or her own home. For example, if police must enter a home based on urgent circumstances, they do not have carte blanche authorization to behave in any way or in any manner that they determine to be fit. By the same token, absent exigent circumstances, while police may be able to obtain prior judicial authorization (a search warrant) to enter a home, the warrant does not grant them carte blanche in their treatment of the home or its occupants.
The difficulty that I have with the reasonableness parallel between police action and the actions taken by a homeowner in relation to an intruder is that contemplation in the moment does not favour the home occupant. By way of a simple thought experiment, imagine that you are a police officer approaching a home to the sound of an apparent life or death struggle. While that moment is certainly stressful, you have the benefit of training along with a small window of time to let your mind settle into the moment. In cases of prior judicial authorization, you would have the benefit of planning and deliberation before executing the warrant. The homeowner doesn’t have these same luxuries.
The home is considered a sanctuary becomes once one is inside of it, there is not only a reasonable expectation of privacy, there is a reasonable expectation of security. When a person is inside their home sanctuary, I think it is reasonable to expect that are habituated by that safety and security of their private environment. That home occupants understands that the general world is not authorized to be within their home. That homeowner has become accustomed to walking the halls and entering the rooms in comfort, perhaps even in a condition of a vulnerability.
Imagine the shock of the Kawartha resident who at 3AM came face-to-face with a person who should not have been in his home. I expect this was frightening. In the haze of the early morning hour, when the resident’s eyes had likely just been stirred awake – with the heart pumping exceptionally fast – with the human body doused in stress hormones, there was an expectation that this person was act in a reasonable manner as interpreted by a third-party (judge, lawyer or police officer) who is actually experiencing none of these traumas in the moment. To my mind, the trauma of a break-and-enter should itself be an exceptional circumstance to warrant justifying an extreme response from the home occupant. To my mind, this ought to be an exceptional circumstance contemplated in our self defence legislation.
The Law of Self Defence
Please understand, this is just my opinion, and my opinion is not supported by Canadian law.
Section 34(1) and 34(2) of the Criminal Code of Canada define the parameters for self defence. There are no specifically contemplated exceptions carved out for self defence triggered by a home invasion or break and enter.
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34(1) A person is not guilty of an offence if
- (a)they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
- (b)the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
- (c)the act committed is reasonable in the circumstances.
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Marginal note: Factors
(2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
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(a)the nature of the force or threat;
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(b)the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
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(c)the person’s role in the incident;
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(d)whether any party to the incident used or threatened to use a weapon;
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(e)the size, age, gender and physical capabilities of the parties to the incident;
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(f)the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
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(f.1)any history of interaction or communication between the parties to the incident;
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(g)the nature and proportionality of the person’s response to the use or threat of force; and
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(h)whether the act committed was in response to a use or threat of force that the person knew was lawful.
Interestingly, s. 34(2) doesn’t even carve out “place” as a relevant circumstance for consideration.
Opinion: Problem with the Objective Standard
While I think we can all appreciate that self defence must be, having regard to the circumstances, both reasonable and proportionate , this Calgary criminal lawyer has defended many cases where the concept of “reasonableness” is clearly determined and adjudicated by persons who are not actually standing in the shoes of the defender. I am also quite certain that many of these persons also lack life experiences necessary for appreciating self defence and have little or no connection with the actual experience of the accused. For example, I am quite certain that there are many judges who haven’t been a fight. It seems odd to me that a person who has never experienced being in a fight is tasked with the important responsibility of adjudicating on what is a reasonable during a fight.
In R. v. Khill, [2021] SCC 37 the Supreme Court of Canada arguably disconnected the concept of reasonable self defence from the experiences of the person acting in self defence. As summarized:
The catalyst considers the accused’s state of mind and the perception of events that led them to act. Unless the accused subjectively believed on reasonable grounds that force or a threat thereof was being used against their person or that of another, the defence is unavailable. The question is not what the accused thought was reasonable based on their characteristics and experiences, but rather what a reasonable person with those relevant characteristics and experiences would perceive. The motive considers the accused’s personal purpose in committing the act that constitutes the offence. This is a subjective inquiry which goes to the root of self‑defence: if there is no defensive or protective purpose, the rationale for the defence disappears. Clarity as to the accused’s purpose is critical, as the spectrum of what qualifies as a reasonable response may be limited by the accused’s purpose at any given point in time.
That the Supreme Court has confirmed that “the question is not what the accused thought was reasonable based on their characteristics and experiences” is in the opinion of this Calgary criminal lawyer, absurd. The idea that a third party, viewing events from behind a desk or counsel table and who is not under any pressure other than that of quiet reflection is to my mind, debatably unreasonable. I say this because the person who forced into self defence doesn’t have the luxury of peaceful contemplation. In fact, the self defender’s characteristics and experiences obviously inform self defence. What if the person had been the victim of a prior break and enter where they attempted peaceful intervention and got hurt. I know a person who was stabbed during a break and enter – sadly suffering wounds that impacted the rest of his life. What happens if the person is small in stature and thus uses weapons or implements to give them a fighting chance? What happens if the person is so polluted by stress hormones and other bodily chemical reactions that the mind is blinded by the fear of a moment that they did not cause?
In Canada, the law is that no person can consent to serious bodily injury (see R. v. Jobidon, 1991 2 SCR 714).
To my mind, an intruder must be deemed to consent to whatever happens during their unlawful break and enter. After all, in a private dwelling, an intruder is not supposed to be there. The intrusion itself offends the very nature of the home sanctuary and intruder ought to be deemed to expect a hostile response from the home occupant. The innocent home occupant on the other hand, may even be in their most vulnerable position because of the expectation that they are safe in their own home sanctuary. The threat caused by an invasion of one’s home is high, perhaps even overwhelming. The intruder who causes this threat is almost always aware of this and if they aren’t, they should be deemed to be aware of this. Please understand, this is only my opinion.
Conclusion
I completely agree with Ontario Premier Doug Ford who said:
“Something is broken … You should be able to protect your family and someone’s going in there to harm your family and your kids. You should use all resources you possibly can to protect your family, and maybe these criminals will think twice about breaking into someone’s home.”
Perhaps if break and enter artists were aware of possible dire consequences when entering a private home, they wouldn’t break into that home. In Canada. There are even examples of criminals suing home owners because the home owner injured them in the course of their own malfeasance.
Calgary lawyer (and former Crown Prosecutor), Cary Rodin was correct when said “use of force is complicated”.
Maybe we need to uncomplicate use of force and self defence in break and enter (perhaps even trespassing) situations?
While the harshness of a carte blanch self defence rule in circumstances of break and enter or home invasion would assuredly lead to some devastating results – not intended by legislation – perhaps that is the price to pay for permitting citizens a zone that truly recognizes the Castle Rule. The home is a person’s castle.
If the Castle Rule was truly honoured and self defence in response to break and enter, home invasion and criminal trespass was simplified, intruders would certainty think twice; and the rest of us might act more responsibly in relation to our neighbor’s home.
Again, I cannot emphasize enough, that I am offering opinion only. To reiterate, the law is that self defence must always be reasonable and proportionate. The assessment of reasonableness will always be made by people who aren’t truly standing in the shoes of the person claiming self defence. So please do not take this post to be legal advice. This is opinion only.
In my view, when our law reduces citizens to sheep, our society is fundamentally weakened.
In the view of this Calgary criminal lawyer, it is incredibly unfair that the Kawartha resident who was the victim of the break and enter is now burdened with the threat of criminal sanction. From the news article, that person started out the evening as innocent. That person was victimized by an intruder and is now arguably being victimized further by a criminal justice system that enjoys chanting high sounding principles like “sanctity of home” but doesn’t truly put those principles into practice. I say, for self defence in response to home invasion, break and enter or criminal trespass, let’s put the Castle Rule into practice.
From this Albertan to that Kawartha resident, I sincerely wish you all the best.
These are my thoughts, not yours.
David Chow
Alberta Criminal Lawyer
https://calgary-law.ca/defending-criminal-charge/self-defence/
David Chow is a former Crown Prosecutor who has been an Alberta criminal lawyer for over two-decades. David offers a free initial telephone consultation for criminal law and roadside sanctions matters.