Hearing in R v McKay

The Supreme Court of Canada (“SCC”) has one case on its docket for next week, which will be heard on Tuesday. Since in R v McKay, a criminal case out of Manitoba, the Manitoba Court of Appeal (“MBCA”) replaced the trial judge’s acquittal with a conviction (see 2006 MBCA 83), Mr. McKay has a right to appeal to the SCC without leave.

The case provides the SCC with a rare opportunity to examine the defence to property provisions in the Criminal Code, RSC 1985, c C-46.

The charges arose from a party hosted by Mr. McKay. The party ended when Mr. McKay assaulted a visitor and sent everyone home. Two partygoers who had left returned so that one of them could pick up some stereo equipment he had left behind. Mr. McKay told Mr. Pashe (the victim of the assault at issue) that he could not stay. Mr. Pashe refused to leave his friend alone, fearing for his safety. Mr. Pashe was threatened with a knife. After Mr. McKay had been disarmed once, he returned with another knife. In the fight that ensued, Mr. Pashe was severely cut across the face.

At trial, Mr. McKay was acquitted of aggravated assault. The judge based his decision on s. 41(1) of the Criminal Code, which reads:

Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

There was no issue that Mr. Pashe was a trespasser. However, the MBCA reversed the acquittal on the basis that s. 41 could not justify the use of a weapon solely for the purpose of removing a trespasser. For the use of a weapon to constitute reasonable force, the situation must be such that self-defence is at play.

Since the appellant had conceded that there was no air of reality to a claim of self-defence, the MBCA held that there was no defence to the charge of aggravated assault. The Court then went on to hold that since the accused had relied only on s. 41 to justify the assault, once that justification was removed all of the necessary findings to support a conviction had been made. They entered a conviction and remitted the case to the trial judge for sentencing.

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