R. v. McKay

The Chief Justice — We agree with the Court of Appeal’s decision to set aside the acquittal ((2006), 211 C.C.C. (3d) 74, 2006 MBCA 83). Defence of property under s. 41 alone could not justify the commission of the aggravated assault alleged in this case. We are not satisfied, however, that the findings of the trial judge suffice to ground the conviction entered by the Court of Appeal. In particular, the trial judge made no finding that the appellant had intentionally stabbed the complainant. Moreover, he expressed reservations about the overall reliability of the evidence.

In so concluding, we should not be taken as endorsing the Court of Appeal’s analysis on the scope of the defence of property. By way of clarification, we should not be taken as endorsing the view that “defence of property alone will never justify the use of anything more than minor force being used against a trespasser” (para. 15) or that, in all cases, “the defence of property alone will not justify the intentional use of a weapon against a trespasser” (para. 23).

The appeal is allowed, the conviction set aside, and the matter remitted to the Court of Queen’s Bench for a new trial.