Self-defense has become a hot-button issue in Canada, especially when it comes to self-defense laws. Self-defense is one of the most hotly debated concepts in our culture, but is it even legal in Canada? In this episode, we talk to Solomon Friedman, a criminal defence lawyer and an expert in self defense, about whether self defense even exists in Canada.
00:01:27.580What are the limits of self-defense in Canada?
00:01:34.980It's the type of story that pops up every time someone's charged with defending their own home.
00:01:39.960Hello, I'm Brian Lilly, and welcome to the Full Comment Podcast.
00:01:43.260This is a best-of episode from the 2025 season.
00:01:47.020We had a lot of great episodes in 2025, and I want to thank you, the listener, for being part of this,
00:01:52.000for supporting us throughout the year and look forward to, well, another great season in 2026.
00:01:58.360Now, back to the issue of self-defense.
00:02:00.200We revisited this again after a man in Peterborough, Ontario, was charged with assault for fending off an intruder into his own home who came in with a crossbow.
00:02:11.780That led to calls for castle laws to be enacted in Ontario, well, across Canada, but Ontario Premier Doug Ford was one to call for them.
00:02:21.260Do we actually need to change castle laws or self-defense laws in Canada?
00:02:25.800Solomon Friedman is a longtime criminal defense lawyer and someone who says,
00:02:29.380no, we don't need to change the laws at all.
00:02:31.560Well, we just need to honor and respect the ones already on the books and maybe change a few rules about how they're applied.
00:02:42.180The right to self-defense, is that something that we even have in Canada?
00:02:46.020It's become a big debate of late after a couple of high-profile cases and after some comments by a chief of police.
00:02:53.120Hello, I'm Brian Lilly, and welcome to the Full Comment Podcast.
00:02:55.920And today we're going to delve into this issue.
00:02:58.160You may have heard of the story of a man in Lindsay who defended himself with a kitchen knife after an intruder broke in with a crossbow.
00:03:06.280And you've most definitely heard of the case of a man in Vaughan, Ontario, shot and killed by home invaders after putting a gun to his four-year-old daughter's head.
00:03:30.220But unfortunately, many people in high positions tend to help feed into that idea, including York Region Police Chief Jim McSween, who had these comments to say last week.
00:03:41.160As it stands, we know the best defense for most people is to comply.
00:03:47.620As you've just heard, a number of safety recommendations will allow for those that are victimizing members in the community to leave and not harm anyone.
00:04:22.340So, Solomon, when you heard Chief Jim McSween make those comments about be a good witness, about go hide in a bathroom somewhere, what did you think?
00:04:32.480I mean, my view is, yeah, for some people, that is the right answer, but that is not the only answer, and it's not the answer for everyone.
00:04:39.220And to me, it just felt like it was the head of police saying, we're not really interested in people defending themselves.
00:04:47.960We're willing to let criminals do what they want to do.
00:04:52.280Yeah, you know, what struck me first and foremost was that it was terrible legal advice, okay?
00:04:59.300Not so much that it was bad life advice.
00:05:01.680In other words, if someone is in that, and it's a horrifying scenario, we need to understand that, right?
00:05:06.800Because this has both, you know, legal but very much real-life implications.
00:05:12.180Your home gets invaded, usually in the middle of the night.
00:05:15.320You've got strangers who are armed and making demands if they're not there just to do harm.
00:05:19.620But the legal response is not necessarily the same as the practical response.
00:05:25.280And what really irked me listening to that, I'm obviously listening to it through lawyers' ears, which is there was no discussion about what is legal and what is not legal.
00:05:35.640So instead, you have the chief of police of one of the largest police services in the country essentially giving life advice.
00:05:43.300But when it comes from the chief of police, people think that it's legal advice.
00:05:48.140And the number of calls or texts that I got, whether it's from, you know, professional colleagues or friends or family saying, is that right?
00:06:08.440So my take on it was that this was not just a response to the shooting death of Abdullah Alim Faruqi in his home in Vaughan.
00:06:21.720This is the man who was shot during a home invasion while the thugs, you know, apparently had a gun to his four-year-old daughter's head.
00:06:30.600I mean, what father is not going to react viscerally in that?
00:06:34.020We don't know how he reacted, but we do know that in the end, the thugs killed him and left.
00:06:38.340But my thought was he is also responding to the ongoing debate in Canada related to the incident in Lindsay, Ontario, where a guy breaks into someone else's home with a crossbow.
00:06:53.240And the man whose home it is defends himself with a kitchen knife and is therefore charged with aggravated assault, assault with a weapon.
00:07:03.940He was trying to justify that, in my view is, and you've dealt with this in a lot of cases, you know.
00:07:12.100Listeners that don't know you might be saying, well, he's a criminal defense lawyer.
00:07:57.760He gets the father in a headlock and he is choking him out.
00:08:00.860Um, and the son, who is a young man, uh, got a knife and obviously in an effort to do nothing more than save his father's life, stabbed this man to death, okay.
00:08:16.800Uh, and ultimately, you know, and maybe there was some reasonably good lawyering involved as well.
00:08:21.520Um, it was a, it was a, uh, a drawn out process, but the police made the decision not to lay charges, okay.
00:08:27.620Uh, what they did was absolutely legal.
00:08:29.960And in fact, if we go back to the practical advice side, it was the right thing to do if this young man was going to save his father's life.
00:08:37.580Um, so self-defense is absolutely legal in Canada.
00:08:43.340It is a full defense to a charge up to and including murder.
00:08:48.780In fact, it is so serious of a defense that once the individual establishes that that defense is even remotely possible, to use some, uh, legal terms here, air of reality, that it has an air of reality.
00:09:03.640The crown has to prove beyond a reasonable doubt that self-defense was not legally engaged here.
00:09:11.800The trouble is though, with the police, that the police, and I'm seeing this more and more in my practice, they often take a charge first and ask questions later perspective.
00:09:20.640Sort of saying, look, maybe it's self-defense, maybe it's not, let the court sort it out.
00:09:26.420Uh, and in some ways, by the way, for the people who are charged, even though many of them are acquitted, the process is the punishment in and of itself, which then has the effect of deterring others from, from defending themselves.
00:09:36.720For someone who is charged, how long does that process take, this punishment that you're talking about?
00:09:43.200I mean, I'll give you, if it's a murder case that can only be tried in the superior court, the time limit that the Supreme Court set from charge to trial is 30 months.
00:09:56.120That's, that's, that's, that's a good, that's, that's the limit.
00:09:58.800So it takes years to move through the system.
00:10:01.760And by the way, during those years, let's remember, you have been publicly identified and branded as a criminal by the police and in the media.
00:10:10.960You are probably living, if you're, you're lucky, by the way, if you're on bail, because you may be in custody.
00:10:16.500If you're not, you're probably living on very strict conditions, maybe house arrest, maybe you have a GPS monitor, all because you are sort of in the crosshairs of the state because you exercised self-defense.
00:10:28.520So absolutely the process is the punishment, both in terms of time, in terms of conditions, but also in terms of the stigma of being charged with a really serious criminal offense.
00:10:36.660Yeah, I, I, look, even a year of going through that is incredibly horrifying.
00:10:41.460Six months of going through that is horrifying.
00:10:47.740So why is it that police and, and, you know, you got to face off against crowns.
00:10:53.840Maybe you don't want to talk about them, but to me, it's crowns as well.
00:10:57.540It is this view that, no, no, no, despite what the law says, and we'll get into how clear the law is in a moment, despite what the law says, we don't like what the law says.
00:11:07.920And so we're going to put you through this process.
00:11:09.960You know, I think, I think there's, there's a cultural element to this as well, in the sense that, you know, we sometimes hear different terms and it's really important to, to, to just attack them because they have no place in this discussion, including, by the way, our friendly police chief.
00:11:28.900He talked about people taking the law into their own hands.
00:11:33.020And you sometimes see that also, uh, the phrase vigilante justice or vigilantism.
00:11:45.200And it's not taking the law into your own hands.
00:11:48.380In fact, what would be taking the law into your own hands is after they, you know, they get your stuff or they're running away, you get in the car and you fire up flashing lights and you go arrest them and you get a posse together.
00:12:12.600So I think there's a cultural issue here.
00:12:14.920And, you know, the trouble with 90% of us living along the American border is that culturally, whether it's politicians or police or prosecutors, we're always comparing ourselves to the American experience.
00:12:27.360And there's this sort of, you know, innate dislike of what happens in the United States.
00:12:32.240And we don't want to be like the Americans.
00:12:51.900The right to defend yourself, other persons, and your property.
00:12:57.200That is a longstanding right that now is in the criminal code.
00:13:00.700So it's not taking the law into your own hands.
00:13:02.900But unfortunately, I think there's this sort of cultural bias where that first reaction is, well, why didn't you comply?
00:13:09.460And we see it in the statement of the chief.
00:13:13.700Well, I want to read you a statement that Chief McSween put out in response to some of the media criticism that may have come from, I don't know, myself, my colleague Joe Warmington, anyone with a brain, lots of people on talk radio, but not Andrew Coyne.
00:14:24.460It's also, by the way, anytime a figure in authority says that the evidence says, right, the research shows, I say I want to see that research.
00:14:37.300Because there has actually been an enormous amount of research done in the United States in particular about the links between things like stand your ground and castle laws, which I'm happy to talk about in the United States.
00:14:51.480But also the prevalence of armed citizens and the deterrent factor that that has on criminals from committing home invasions.
00:14:59.000So, in fact, it actually cuts the other way.
00:15:01.000If you tell everybody to comply, what that is actually telling criminals is you are going to have a free hand.
00:15:05.640It's funny, John Lott, the great researcher, the man behind the book that most Canadians would scoff at, More Guns, Less Crime.
00:15:23.000And John called me after he saw what Chief McSween said, and he said, we have to talk.
00:15:28.240And he was going, he said, unfortunately, you don't have the same data in Canada as we do in the States with their, I forget the name of what it's called, but they look at outcomes of crimes.
00:15:40.400And he was able to tell me what specific actions in confronting intruders work and what don't.
00:15:49.540And he was able to say that, you know, especially for women being attacked by men who are often larger than them, that hitting them with their fists is, yeah, that's a really bad course of action.
00:16:00.540But pulling out a gun, you don't even have to shoot.
00:16:03.920Just showing it is often enough to save their lives.
00:16:06.900But he said, just rolling over does not actually lead to safer outcomes.
00:16:13.440And he disputed what the chief was saying there.
00:16:16.000Yeah, you know, it's interesting because, you know, and I've read that data.
00:16:20.260And in fact, that conversation refreshed my memory and it made me go back and look at some of those studies.
00:16:29.820And it really comes down to and we're going to we can talk about this later, as we know, as we talk about criminal law policy generally and what laws might be able to be put in place.
00:16:38.000Can laws actually be directed to this kind of behavior?
00:16:40.700But, you know, I'm I'm a believer in my experience in criminal law shows me that there's very little in terms of legal deterrent that is going to deter individuals from committing this kind of crime.
00:16:52.960Like the person who's doing a home invasion is not like, well, there's now a mandatory minimum of life in prison before it was just 10 years.
00:17:01.600I'm not going to go kick down that door trying to feed my addiction by stealing or robbing, et cetera.
00:17:07.060Doesn't mean we shouldn't do those mandatory minimums.
00:17:15.880It's an important policy discussion to have.
00:17:17.220But what everybody who studies deterrence concludes is that one of the biggest actual deterring factors to criminals is fear of being apprehended or of being harmed in the commission of a crime.
00:17:33.500So you got to think about that for a minute.
00:17:43.540Remember, your life's taken a certain path if you're kicking down doors in suburban GTA and performing home invasions.
00:17:51.660So, you know, jail, the possibility of jail is rarely the immediate deterrent.
00:17:56.380The deterrent, however, is getting arrested at that time or being shot.
00:18:01.020And that's what the data shows from the United States, that that actually has a deterrent effect on criminal behavior.
00:18:07.100So my worry is that when Chief Nick Sweeney is talking, remember, he's speaking to two audiences and he might not even realize that audience one are the innocent homeowners.
00:18:17.300And whether the advice he's giving them is good or bad, we can debate that.
00:18:20.380And I think it's generally might be poor advice.
00:18:45.800Let's talk about what the law actually states and then about what Conservative leader Pierre Polyev has suggested in terms of clarifying the law.
00:18:57.960I hear people say, well, we need Castle Law in Canada.
00:19:01.580And my response to them is, no, we don't.
00:19:19.720OK, what Castle Law in some jurisdictions means, and I think it would be helpful in Canada, would be that if you commit a violent offense against an uninvited visitor into your home, the presumption is that you are acting in self-defense unless the Crown can then rebut that presumption.
00:19:41.080In other words, self-defense gets put on the table automatically.
00:19:43.900That's what happens in some other states.
00:19:45.240So just like there is no one version of Castle Law, but I agree with you that if we're talking about no duty to retreat, you don't have any duty to retreat.
00:19:52.120OK, so let's talk about the, you said it was ancient, comes from the common law.
00:19:57.080Explain what it actually means and is required right now, because too many Canadians, Andrew Coyne, believe that any self-defense is too American.
00:20:11.820This is not reality and never has been.
00:20:16.540No, not only is it not reality, but you almost certainly have a constitutional right to self-defense.
00:20:22.780That is, if the government tomorrow passed a law amending the criminal code and removing self-defense, that would be found to be contrary to Section 7 of the Charter, because it would put your life in jeopardy and it would be contrary to the principles of fundamental justice.
00:20:38.240I thought that section only defended bike lanes in Toronto.
00:20:42.980Well, bike lanes, I think that gets about 50% of the attention.
00:20:46.760But as an actual constitutional litigator, I can tell you that you have a constitutional right to self-defense.
00:20:53.280The government, that's my view, and I think it's well supported by the jurisprudence, the government could not essentially amend out self-defense.
00:21:43.740So, it has three elements to it, right?
00:21:46.760The first element is that the person who acts in self-defense has to believe on reasonable grounds, which means that their belief is reasonable.
00:21:56.260They don't have to be right, by the way.
00:22:44.920And I'll just say this about the Lindsay incident.
00:22:47.440And I'll say this about any incident where all the evidence has not been aired in court, tested by cross-examination, and ruled on by a judge or jury.
00:22:58.540Which is why I got asked to comment a lot on it, and I was really reluctant to comment on that case because I have no idea if the knife was used with a crossbow raised or the crossbow was wrestled away and the homeowner was like, you know what?
00:23:13.260You so-and-so, I'm going to get this knife and I'm going to show you what happens once I have you defenseless.
00:23:18.340Or somewhere in a spectrum in between those things.
00:24:13.540The act has to be for the purpose of defending yourself.
00:24:16.440And then the third thing, and this is the trickiest part, because number one and number two are almost givens in every self-defense case.
00:24:25.520The third element is the trickiest, which is your actions have to be reasonable in the circumstances.
00:24:33.240And until, by the way, the Harper amendments to the self-defense provision in 2012, that's where the section ended.
00:24:40.440And let's take a break right now and come back and talk about the Harper amendments, because that is part of the pushback against what Pierre Polyev is saying.
00:24:48.440And people saying, well, the law's already been clarified.
00:24:58.160Back in a moment with Solomon Friedman.
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00:25:21.960Well, if you don't want to get shot or beaten up, don't break into people's houses.
00:25:27.880This sounds like pretty good advice from Alberta Premier Danielle Smith to me.
00:25:31.300You know, you don't want to get shot, don't break into somebody's home.
00:25:33.800Although, you know, there's a whole debate about whether you can actually use firearms.
00:25:37.400But Solomon, let's talk about the 2012, I believe it was, amendments to the criminal code.
00:25:44.380And that all started with a bill that was actually originally suggested by now Toronto mayor, then NDP MP, Olivia Chow, and Liberal MP, Joel Volpe.
00:25:58.680And it was called the Lucky Moose Bill.
00:26:01.940And this is named after a grocery store.
00:26:04.320I believe it's on Dundas Street, downtown Toronto.
00:26:06.720Guy was tired of habitual criminals sneaking in and stealing from him.
00:26:11.640And so one day he just stopped him and tied him up.
00:26:38.780Because in my mind, what was happening then is what's happening now, is policing prosecutors are saying, hmm, I know the law seems pretty clear to you, but we're going to take a different view of it, and we're going to do what we want to do.
00:26:58.580Yeah, and I think in particular, we now have 13 years of hindsight.
00:27:03.500And my conclusion is that they didn't clarify anything at all, and it didn't actually change the way that self-defense operates in our courts.
00:27:11.840So having tried cases before the amendments and after.
00:27:14.380But let's talk about them a little bit.
00:27:35.800I just, you know, like, I think, Brian, to be perfectly honest, I think that I have appeared on a show of yours, you know, 13, 14 years ago, and we've talked about this.
00:27:45.820I just, I got a feeling that that happened.
00:27:47.920So, you know, and that led to this sort of uproar, and the same discussion we're having now, which is, you know, are police charging people appropriately?
00:28:03.680And we'll get, we'll come back to exactly where we left off before the break, which is the third element of the self-defense analysis is, was the act that was committed reasonable in the circumstances?
00:28:16.660And prior to 2012, like so much of our law, by the way, the details and the explanation was left to the common law, which means it was developed through case law.
00:28:30.920Judges would apply that, they would say, well, this is reasonable, this isn't reasonable, some of those judges would get overturned by the Court of Appeal, maybe that would get overturned by the Supreme Court, and over generations, the law gets clarified that way, all right?
00:28:45.040And judges in their decisions would say, how do you know an act is reasonable?
00:28:49.360Well, you look at this factor, you look at this factor, how big were the people, what were their weapons used, what was the threat of violence, all this sort of thing, okay?
00:28:58.960Yeah, if a seven-year-old comes into my home with a knife and I shoot them, you know, that's not reasonable.
00:29:05.640Correct, and different if a man comes in, you know, without a knife, if a guy's just banging on the front door, if they're inside the home, or for example, if it's somebody who you know to be extremely violent, right?
00:29:20.340All, you're right, there's so many things factor in.
00:29:23.780So, what this amendment did, basically, was they got some law student or parliamentary intern to go search the case law to find all of the factors that judges have previously considered in assessing the reasonableness of an act, and they just listed them in the criminal code.
00:29:43.500That's it. That is actually what was done.
00:29:46.220So, for me, as a lawyer, someone who understands how the common law works, it wasn't necessary in the first place.
00:29:51.440The trouble is, police often didn't know about them, maybe some crowns weren't familiar with all of them, but they existed in the law.
00:29:58.100Nothing new happened in that provision.
00:30:00.800All of the factors were ones that were already recognized in the case law, and instead now...
00:30:05.200But it should have informed pre-charge.
00:30:08.720It should have informed the police and prosecutors, but I don't think it has.
00:30:13.020Brian, I'm going to tell you what I told you 13 years ago when we talked about this.
00:30:16.600So, I said, the law is not the problem.
00:30:23.680Parliament does not have to pass any laws.
00:30:26.020What has to happen are the provinces, who are responsible for the charging decisions of police.
00:30:32.080They need to amend the policy handbooks of the police services and of their Crown Attorney's offices.
00:30:38.180Because every province, and in the jurisdictions where it's federal prosecutors, like the territories, they have desk books, policy manuals for prosecutors.
00:30:48.680And it has their policies on every type of offense, from domestic violence to sexual assault to major crime to homicide.
00:31:34.800So unlike British Columbia and Quebec, for example, in Ontario, the charges themselves, criminal charges, are not vetted by prosecutors before they're laid.
00:31:46.180Then prosecutors decide what to do with them.
00:31:48.240There's a pretty good argument that in Quebec and British Columbia, where prosecutors actually have to approve the charge before it gets laid in court, you end up with a much more legally consistent and legally accurate charge form.
00:32:06.180That the charges themselves tend to comply to the law to a much greater degree.
00:32:10.680So that's something, by the way, that's been called for in Ontario.
00:32:13.620But policy is what drives all of this.
00:32:22.300One, I'm not opposed to the law being clarified once again.
00:32:26.300And I say that just as someone who watches bill after bill get passed, that is nothing but a clarification of bills previously passed.
00:32:33.600So the argument that, oh, well, it was done in 2012, so we never need to touch it again, that doesn't wash with me.
00:32:39.580And if they want to clarify it, that's good.
00:32:41.280But that's been a lot of the knocks against polyevs.
00:32:43.340But I understand what you're saying, and I think, yeah, there should be a push on that.
00:32:47.540And, you know, the next time Premier Ford brings this up, I may raise this issue and say, well, it is up to you.
00:32:55.240But, you know, I may have whispered his name a couple of times, but, you know, a certain columnist in the Globe and Mail is denouncing the idea that we would further clarify the law of saying, well, we don't want to be like the Americans.
00:33:07.600And that Polyev's stand guard legislation, proposed legislation, would go further than the Americans.
00:33:17.640I don't really care what the Americans are doing.
00:34:09.700So, which tells you, I think that most of the time, and I know that defense lawyers love to gripe about judges and complain about rulings that we get.
00:34:18.360But I actually think that most of the time, judges get this right.
00:34:21.540I think that they do apply the law of self-defense well and that people who are entitled to acquittals get acquittals.
00:34:27.660But once again, I'll come back to where we started this conversation.
00:34:32.800When you've lost your reputation, you've lost your business, maybe you've been detained, lost your firearms, your family and friends think you're a criminal.
00:35:31.260By the way, on defense, the defense lawyers play a role in this too.
00:35:34.080I, as a matter of practice, if there has been a story that my client was charged and the media, for whatever reason, didn't follow the acquittal,
00:35:41.120I go back and contact every journalist who wrote a story and ask that they either update the original story or write a new story.
00:35:47.120And the media is quite responsible when it's brought to their attention.
00:35:49.540But the trouble is, it's often not brought to their attention.
00:35:53.920There are so many criminal courts going on.
00:35:56.180I want to spend the last few minutes that we've got talking about political response to this.
00:36:02.060And Prime Minister Mark Carney on Friday did talk about updating the criminal code.
00:36:09.420And he said a few things that surprised me because the Trudeau liberals brought in a bail reform package back in 2019 that was a disaster.
00:36:22.380It followed the same philosophical pattern as places like New York State and other progressive jurisdictions.
00:36:26.840And I just want to point out that New York State and other progressive jurisdictions in the United States saw the same horrific results as we did with repeat violent offenders going through a revolving door.
00:36:37.960And, you know, Democrat Governor Kathy Hochul in New York did a full reversal on that.
00:36:44.380We did a very partial one on specific cases.
00:36:47.820But, you know, guys who are doing carjackings with guns who are caught, charged, let out on bail, and then do it again, still get bail because of the way the criminal code is written in due to Bill C-75.
00:37:04.420So I want to play a clip of Mark Carney.
00:37:07.300He was asked about keeping people in the country, you know, in terms of keeping high quality people in the country and, you know, boosting the economy.
00:37:18.160And he started talking about quality of life.
00:37:20.480And he started talking about crime and the need to crack down on crime.
00:37:24.100And here's what he had to say, which I wasn't expecting from him.
00:37:28.720This government is committed to reforming the criminal code to ensure that organized crime, gang crime, crime with handguns, home invasions, auto theft, that the individuals who participate in those crimes pay the price.
00:37:45.180They should, with consecutive sentencing, that they are not in a position where they commit a crime one day and they're arrested and then out on bail the next.
00:37:58.060So bail reform being at the heart of it.
00:38:00.680We're committed to having more officers at our border, a thousand more border agents, more RCMP, committed to working more closely with the provinces.
00:38:08.680And I'll give you a specific example with respect to the last.
00:38:13.280We've been working with the Council of the Federation, all the provinces on bail reform.
00:38:19.720We're proposing legislation, I should say, to the House on that next month.
00:38:25.000I met with Premier Ford this morning as part of an ongoing conversation about how we can address these issues, what the federal government needs to do on the criminal code.
00:38:36.400I agree with Premier Ford on these issues, and that's why we're moving on them, what the province and the municipality can do in terms of policing more effectively.
00:38:47.800Solomon, were you surprised to hear that from the Prime Minister?
00:38:51.440I was surprised, you know, that those are not liberal talking points traditionally.
00:38:57.340They come from the other side of the political spectrum.
00:39:00.060And I'll say this, and, you know, Brian, you and I have disagreed over this, and one of the wonderful things about speaking to someone like you is open-minded and thoughtful is you can have really polite and interesting disagreements.
00:39:11.620I think this is the wrong end of the policy problem.
00:39:15.320If you're talking about sentencing, bail is an interesting one.
00:39:19.660I think there is something to talk about bail.
00:39:21.140Once you're talking about consecutive sentences, number of sentences, you really admit, I can't solve the problem, so maybe on the back end I can punish the people who are doing this, but I can't do anything about the problem.
00:39:34.060I think, like, you know, I live in Ottawa, and I have seen downtown Ottawa degenerate into a pretty scary place.
00:39:42.560And all of that, by the way, has been fueled by government policy.
00:39:45.200You know, drug distribution centers, we see what happens, we see what happens when petty crime is ignored, we see what happens when, essentially, there's no enforcement whatsoever of the kind of public order offenses that there used to be.
00:39:58.660The police have just given up, just given up completely.
00:40:01.780You mentioned Ottawa, and I used to live there as well.
00:40:06.260But when I left 580 CFRA in January 2019, that's a station that I had worked at off and on since 2002, and I knew the byword market very well.
00:40:18.860But I never had to step over people openly shooting heroin or fentanyl into their arms the way I did as I was leaving some of my last radio shows at 10 p.m. at night before I moved down to Toronto.
00:40:32.260And it degenerated horribly, only gotten worse during the pandemic, and that is due to government policy.
00:40:53.420But you walk down in the byword market, and you have random people who are high on drugs yelling at you, threatening to stab you, threatening you.
00:41:04.000And it is just totally ignored because progressive social policy dictates that you can't do anything in any way to deal with our neighbors who use drugs.
00:41:13.640Not fentanyl addicts who are stabbing people.
00:41:15.420Before I left, the police have been instructed just to ignore open drug use and problems around it, if it was anywhere near the safe injection sites and the like.
00:41:25.220And by the way, this is a tourist area, an economic engine for our nation's capital that is steps from Parliament Hill.
00:41:31.940But so what is your philosophical issue with consecutive sentences, though?
00:41:37.240So my understanding of the research is that increasing sentences has no deterrent effect on criminal behavior.
00:41:47.300So once again, if you want to get to the root of the issue and say, how can we stop people from doing this?
00:41:53.780Sentencing does nothing to deter criminal behavior.
00:41:58.440So really what you're end of, it's sort of at the end of the day, you're saying that doesn't mean there is there's no power in it.
00:42:02.940But it's important, number one, that people who are a danger to the public be kept away from the public.
00:42:09.340That's a pretty good reason to have prison.
00:42:11.580What I would say on the other side, and, you know, I may be a libertarian when it comes to firearms.
00:42:16.980I mean, but I do have this soft, maybe we'll call it a little progressive side to me.
00:42:21.180And that is what I would like to have in the world that I live in is a world where people who go into prison come out better than they went in.
00:42:30.600That is actually what would make the public safer, right?
00:42:41.040Instead of handing out needles, which is what people are advocating for, or in some instances happening.
00:42:47.060Well, and I'd say this, by the way, I think like, and, you know, I'm not an expert on the penitentiary system.
00:42:53.320I know a little bit from my work as a criminal defense lawyer, but it's a university for criminals, Brian.
00:42:58.000People go in there, they're probably, you know, had a BA in crime, they leave with a PhD, because that's the environment that it is, right?
00:43:06.160And that, by the way, makes us all profoundly unsafe.
00:43:09.580So, once again, if you're just talking about we're going to lock someone up for longer, if you're not locking someone up for life, like they're a dangerous offender, they're people like that, they're only coming out, generally speaking, worse than they went in.
00:43:21.400Look, we've got a court system that has struck down a bunch of mandatory minimums.
00:43:26.680I don't think that we ever had really harsh mandatory minimums in this country, but we've had some struck down for like, your third offense on a gun crime, you're going to get three years.
00:43:45.740I think that we do need to have some mandatory minimums.
00:43:48.260I don't believe in three strikes and you're out and we're locking you up for life.
00:43:51.480That goes too far and doesn't have any effect.
00:43:54.780Is there any effect in terms of denunciation and keeping dangerous people out of general society?
00:44:03.540Yeah, and those are really important sentence and principles.
00:44:05.660So, you know, one of the things that can also be done, and this is an important one, is to give judges other tools that they can use when it comes to community supervision, when it comes to probation.
00:44:20.380One of the problems that when people get out often, they have very limited support and supervision, right?
00:44:25.940Because you have to remember, and I say this to people, and it's hard for people to hear, particularly for conservatives, which is 99% of people who go into jail are going to come out.
00:44:37.440Now, if they come out with no support, then they go back exactly to the life that they went to previously.
00:44:42.660And if the courts had tools where they could have exercise further control, so I'm a big believer in things like probation, things like community supervision, but if you don't fund those properly, they're useless.
00:44:54.480And if you don't give judges actual tools that have teeth, where you can pee on probation for longer periods of time, so, you know, when I started practicing that, that length was two years, now three years, I think that people, they should have longer supervision orders, right?
00:45:09.080Where they have real mandatory, very challenging things, whether it's drug testing, whether it's, you know, unannounced visits.
00:45:17.160But to do that, you've got to pay money for these probation officers, police officers to be enforcing that.
00:45:21.680So, I think that just saying, oh, we're going to give you a consecutive sentence, and we have consecutive sentences, by the way, in the criminal code, for criminal organization offenses, for terrorism offenses, for other kinds of offenses, there are consecutive sentences.
00:45:33.940But the violent crime problem in this country just keeps getting worse.
00:45:36.740So, I would advocate for doing, you know, not just doing the same thing, but trying something different.
00:45:42.100Let me ask you about bail before we let you go.
00:46:00.020Most people should not be held in prison until their trial.
00:46:03.220But, repeat, violent offenders, I don't think, fall into that category.
00:46:07.760How do we deal with this in a reasonable way?
00:46:10.960I've talked to friends who are JPs, and, you know, there was one case, I could tell you the address that this happened at, and you would be like, I'm not surprised.
00:46:21.360You know, repeat violent offender found with a loaded gun in their car, up on the dashboard, out on bail on existing gun and violent criminal charges, denied bail, overturned by, you know, a higher court.
00:46:39.820And so, even if people are denied bail, the higher courts say no, they've got to have bail.
00:46:46.420Where do you draw the line, and how do you do it?
00:46:50.480And I get all the arguments that people like Doug Ford and other premiers need to build more prisons, because growing population, we haven't done that.
00:47:48.200But, what is this reasonable bail all about?
00:47:50.140And you hit the nail on the head, which is, if we really believe in the presumption of innocence, like really believe in it, not pay lip service to it,
00:47:57.900then, if someone's presumed innocent, then in most cases, they are not going to be detained before the state has an opportunity to prove that they're guilty.
00:48:07.140So, I actually see, and, you know, I'm not avoiding the question directly.
00:48:12.080I'm saying that there are other elements to this solution.
00:48:15.000So, one of the problems comes back to the first thing we talked about.
00:48:17.800We said how trial in the Superior Court, the Supreme Court set a limit for 30 months.
00:48:21.960If trials only took four months to get to, three months to get to, you know that in California, you can be charged with any offense under the sun, you've got a right to trial within 90 days.
00:48:36.740In 90 days, the state has to be ready to go and prove their case against you.
00:48:41.060All of a sudden, by the way, the bail dynamic shifts, because the downside is not somebody sitting in detention for a year or two years or three years, right?
00:48:50.460So, that's a big problem, that we have a massive backlog, which means we have to free people, because, A, we don't have the resources to hold them.
00:49:00.020The provincial detention centers are bursting at the seams.
00:49:03.160So, practically speaking, we actually can't really detain more people than we're detaining.
00:49:06.600Now, there's 100% an issue where individuals who are charged with very serious violent offenses get out on bail for those, and then commit other serious violent offenses.
00:49:34.800There's going to be a lot of discussion, and if there's anything passed, it will be symbolic and meaningless.
00:49:42.060That is what's going to happen out of Prime Minister Carney's review, right?
00:49:45.700Because, legally, there are restrictions to what you can do to limit people's access to bail.
00:49:51.600Because you have people who are innocent who get charged with offenses, sometimes even serious offenses,
00:49:56.060and you can't have those people detained pretrial.
00:50:00.160My view is, I'll come again to the same thing I said when it comes to sentencing.
00:50:05.600There are alternatives to detaining people pretrial, but they are really expensive and they require resources, right?
00:50:14.680A number of jurisdictions in the United States, they have real bail supervision programs, right?
00:50:20.480So, the trouble is, bail, if it's just bail and you get out, you don't have a lot of supervision.
00:50:25.620So, there's some GPS monitoring in Canada, but they're really, the police do not have the resources to monitor alleged offenders who are on bail.
00:50:32.800And notice, I said alleged offenders, because they are only alleged offenders.
00:50:36.700But, once again, those are things that cost money.
00:50:38.760My worry is, every time the criminal code gets amended, and it gets amended over and over again.
00:50:43.880I have in my office, I have criminal codes from the 50s.
00:50:47.380Yeah, every once in a while, you get a really old offense, and it's good to go pull out the annotated criminal code from the 50s.
00:50:51.340Every year, the criminal code gets thicker and thicker and thicker, because governments love adding to it, because the criminal code doesn't cost any money to amend.
00:50:59.500Now, it has huge costs, financial and social downstream, but it doesn't cost any money.
00:51:04.020When the real solutions, from what we started talking about this, whether it's addressing drug addiction, or how about actually addressing mental illness in our community, right?
00:51:12.240The prevalence of individuals who have untreated mental illness, and nobody wants to go anywhere near that, because it's expensive and resource-intensive.
00:52:12.760And if we keep going down that circle, so the don't want to do them is an interesting one, because the don't want to do them is they're politically unpopular, particularly where these progressive views that certain subjects are untouchable.
00:52:23.420Like, just so you know, when you say safe injection site, and you can say that to any criminal lawyer, we are a small-L liberal bunch.
00:53:34.140Whether it's having you back on the podcast or not, I will check back with you six months after Prime Minister Carney's review and changes to bail have come in.
00:53:42.440And unfortunately, I fear you will be right.