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First off I’d like to say this is just a hypothetical question that I thought of today.

This following scenario is to be taking place in Canada. Let’s say a guy is at his house on his private property. He’s downstairs on the main floor when someone tries to break into his house. The guy kicks down the door and has a knife in his hand. The owner of the house carries around with him an illegal hand gun which he uses to shoot which kills the person who broke into his house.

My understanding is that because it’s on his private property and because he felt in danger for his life that it wouldn’t have been using excessive force and it would be self defence. Very quickly the police would realize that the firearm he used to shoot and kill person was illegal in Canada.

Would the man end up not getting charged with anything, or because it was with an illegal weapon would it become murder or something similar. I’m also assuming he’d get charged with a crime for having the illegal gun. Is that correct or wrong??

Thanks in advance

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    I'd note that whether he used excessive force when he killed the intruder (and, thus, whether he may be exposed to a potential murder charge) would largely depend on specific facts to be drawn out in a trial, not automatically deemed legal simply by virtue of a trespass. (I believe).
    – A.fm.
    Jan 13, 2018 at 9:06
  • Related: see in particular the first Q&A.
    – user4657
    Jan 13, 2018 at 10:52
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    I do not think that having an illegal weapon has any bearing on whether you will be convicted of murder. As the previous poster explained, that will be decided separately. However, you might have a charge for keeping an illegal weapon, regardless of whether that is in addition to the murder charge, or whether you are acquitted of the murder because it was self-defence.
    – user
    Jan 13, 2018 at 19:35
  • If you have an illegal machine gun and put 12 bullet holes into a guy with a knife, that might not be self defense.
    – gnasher729
    Oct 23, 2022 at 20:13
  • @gnasher729, if they are attacking you, and you are a poor shot, and they keep coming, it might be... Jul 31, 2023 at 0:53

1 Answer 1

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They may be charged independently with unauthorized possession of a restricted or prohibited firearm (s. 95 of the Criminal Code).

R. v. Dockerill, 2013 BCSC 2429:

[2] Mr. Dockerill, you are to be sentenced for your offence of unauthorized possession of a restricted firearm, namely a 9 mm semi‑automatic pistol, that either was loaded or was unloaded with readily‑accessible ammunition for it also in your possession (contrary to s. 95(1) of the Criminal Code).

[3] You used the pistol to kill John Borden in a gunfight on May 25, 2010, in the parking lot outside the business premises where Mr. Borden lived on Wilgress Road here in Nanaimo. The circumstances of the offence are described in my reasons for judgment after the trial (2013 BCSC 1454).

[4] You were originally charged with murder as well. However, the Crown dropped that charge in July 2012, when it accepted that you used the pistol in self‑defence. The Crown accepted that Mr. Borden had opened fire on you with a .44 magnum revolver when you arrived with your friend Dylan Ambrus to collect some money.

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