Cedric Forde killed Clive McNabb. He stabbed him. At trial he admitted he had done so. The question that was left for consideration by the jury, however, was whether he was justified in doing so. Forde alleged that he acted in self-defence when McNabb came at him on his property with a knife. In charging the jury on the claim of self-defence the trial judge noted that the jury should consider "the availability of other options for Cedric Forde to extricate him from the confrontation with Clive McNabb" [para 30].
Forde was convicted and appealed. On appeal he argued that the trial judge erred in charging the jury that retreat was a relevant consideration. The Ontario Court of Appeal agreed: R v Forde, 2011 ONCA 592.
McNabb was the former spouse of Forde's common law partner. Both were also involved in drugs. On the date of killing McNabb had attended at Forde's place; he apparently had done so as he understood that Joe Grasso was there - Grasso owed McNabb some money for a drug debt.
Ultimately McNabb ended up in Forde's bedroom and an argument ensued between he and Allamby (the common law partner of Forde). Forde then entered the bedroom and an argument ensued between them. McNabb came at Forde with a knife and Forde retrieved a knife from the closet and stabbed McNabb once.
Forde was convicted of manslaughter by a jury. He appealed.
On appeal the central issue was whether retreat was a relevant consideration under section 34(2). After a review of English, American and Canadian authorities the court offered the following conclusion:
Having regard to these authorities, I reject the Crown's position that while retreat from one’s own home is not a necessary element to claiming self-defence, it may nonetheless be a factor for the jury to consider. By giving an instruction along the lines the Crown suggests, the danger would always remain that the jury would all too quickly leap from the factor of retreat to the inference that there is no entitlement to self-defence. As the case law referred to above establishes, a jury is not entitled to consider whether an accused could have retreated from his or her own home in the face of an attack (or threatened attack) by an assailant in assessing the elements of self-defence under s. 34(2). [Emphasis added].