HANNAFORD： Your non-existent right to defend your home
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Summary
Last week, an Ontario man was charged with aggravated assault and assault with a weapon after he defended himself and his home against another man who had broken in. Canadians, coast to coast, are deeply concerned that the homeowner was charged. Do Canadians not have a right to defend themselves and their homes against intruders?
Transcript
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Good evening, Western Standard viewers, and welcome to Hannaford, a weekly politics show.
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It is Thursday, August the 28th. Last week, an Ontario man was charged with aggravated
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assault and assault with a weapon after he defended himself and his home against another
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man who had broken in. This famous case involves an intruder who was allegedly stabbed and remains
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in hospital. Canadians, coast to coast, are deeply concerned that the homeowner was charged.
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Do Canadians not have a right to defend themselves and their homes against intruders?
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With me today is Hatim Keir, a constitutional and criminal lawyer whose work is funded
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by the Justice Center for Constitutional Freedoms. Welcome to the show, Hatim.
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Hatim, let's cut to the chase. There are two questions here, it seems to me, that need to
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be dealt with first. One, it seems like the message is that Canadians don't have a right
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to defend themselves and their homes, and who actually says so? Is that the police messaging
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that? Is that the accumulated wisdom of the courts, or is it Parliament itself? And then
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the second question is, to me, something seems to have changed. I can't imagine this case coming
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forward at the time that I started my journalism career a very, very long time ago. So what's
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your sense of what is going on, what is driving this apparently bizarre situation?
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Well, to start with your first question, I think you're right to say that the message is Canadians
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don't have a right to self-defense. And that is the state of things. As for who's making it that way,
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it's a, well, it starts with Parliament, because the criminal code is their legislation, criminal
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laws under the federal jurisdiction. And then more broadly than not, you could attribute it
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to the justice system as a whole. In terms of what's changed, it's a combination of factors.
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So the criminal code was amended back in 2012, to make the current rules for self-defense as they are.
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And the rules turn on reasonableness. It's an assessment of reasonableness. And that decision is
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ultimately going to be made at a trial by the jury. The jury is made up of 12 regular people. And so what
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is reasonable ends up turning on what people tend to think is reasonable. Taken more broadly, though,
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it, it's affected by the judges jurisprudence on what's reasonable. And then even, you know,
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going right back to the beginning of, of one of these charges, it's affected by, or it's at least
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the, the, the fact that situations like this arise turns on the fact that there's police who are laying
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the charges in the first place. So they show up to the scene, they, they assess what happened. And
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in their view, it makes sense to lay charges against this individual whose home was just,
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was just broken and entered. And then it's in the hands of prosecutors who choose to prosecute
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those offenses, as opposed to diverting them or withdrawing them. And then that, and then that
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leads to the, to it falling into the hands of the court and then ultimately the jury.
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But, you know, I think so many of us feel that there is something about somebody invading your
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property, your space, that's deeply offensive. It's out of, out of all proportion to the actual
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loss that you might incur. It's, it's sort of dishonoring and it makes people angry. And it seems
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that the legal system is saying, no, no, you shouldn't be angry. You've got to be reasonable about this.
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And I wonder where that line of, well, perhaps you disagree with my analysis, but if you do agree,
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then how, how did that line of reasoning enter the legal system? Who did it serve?
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Well, to, to go to your, your point about the, the offense of having someone break and enter into
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your house, the law historically taking a broad view, isn't, uh, isn't ignorant of that fact.
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Uh, when it comes to, uh, search and seizure law, the court recognizes that a man's home is his castle.
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When it comes to, um, uh, let's say sentencing someone for breaking and entering the court will
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absolutely recognize the, the harm caused by that sort of violent intrusion into a person's space.
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Uh, and then when it comes to self-defense, historically, the court has recognized that a
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person isn't obligated to retreat within their own house. Now that said, uh, I, I, I don't completely
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disagree with the premise of your question. I, I think you're right to point out that there seems to
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be a disregard for that when you see a case like this, uh, come through the court system and, and
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this isn't the only one, uh, there, there've been others in recent years. Uh, I think part of what's
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happening is a, an over-willingness on the part of police to charge and then let the courts figure it
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out. And so, you know, they see a person who, who did commit by the letter of law, they did, uh,
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use force against another person. So if it's not self-defense, he would be guilty of, uh, let's say
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it's assault or assault with a weapon. And so, so they lay the charge. And then if he has a defense,
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they leave it to, to that, to the courts to sort that out. The, the problem with that, and I think
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what offends the sensibilities of probably a great deal of Canadians is that there's a punishment in
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the process. If you're charged with a criminal offense, it'll take years, uh, perhaps, uh, it can range
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from a year and a half upwards to three years, depending on the nature of the charges and the
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procedure used, but it can take years to resolve. In the meantime, a person is dealing with the stress
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of the potential criminal conviction that results the criminal, uh, you know, the possibility of a
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criminal, uh, a criminal record, the potential of jail time in situations where the self-defense
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ends in a homicide. There's a pretty stark reality that's facing this person where they could either
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walk free at the end of this trial or face life in prison. Uh, and then even, even if they get
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acquitted, uh, they'll have spent thousands and thousands of dollars in their own defense.
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And I think people see that and probably rightfully think that that should, that, that entire process
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should have been avoided if the situation clearly appears to be self-defense.
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Now you say that the discretion rests with the police and that of course is the case, but, and there seems
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to be a willingness to just throw the book around and let the court sort it out. Don't think the police
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always thought this way. Is there, is this anything at all to do with the fact that the police have had
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bad press, uh, over the last years, often in the hands of woke Canadians, uh, and they just don't
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particularly want the aggravation. So instead of making a decision to not charge for which they might
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be criticized by all the usual suspects, they take the approach you've described, give it to the courts,
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let them sort it out too bad for the fellow, but it's not my money. Is that, is that how it works?
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I'm not a police officer. I don't know exactly what the cause is, but my suspicions align with
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yours. I think it is, if they lay the charge, it, I think it's arguably out of their court at that
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point. They can, uh, they can direct the responsibility to other parties in the justice
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system, the prosecutor and, and ultimately the court. Uh, and perhaps it makes it harder to fault
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them for the decision. Whereas if they do decide not to lay a charge, uh, the buck stops squarely
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with the police. Uh, no one else in the justice system has the authority to then intervene and lay
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that charge. Well, it has always been my understanding that the police are very responsive
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to political direction. For example, if a politician holding office is very concerned about drunk
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driving, then the police will get that message and they will be tough on drunk driving, but it might
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be something else in which case they'll be tough on that. This is not to say that police routinely
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ignore offenses that are not politically motivated, or I should rephrase that, that are, that are some
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politician's pet project, but they certainly will respond if somebody makes a point of saying,
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we really want you to care about this. So is perhaps the way to deal with this kind of thing
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to put politicians in place who actually have an understanding of what it means to be
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awoken in your own home to find an intruder there and that you do the reasonable thing.
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I mean, Danielle Smith, Premier of Alberta, uh, commented at one of her town hall meetings that,
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you know, if you don't want to get a, this is a paraphrase, she didn't say these very words,
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but this was the gist of it. But if you don't, if you don't want to get beat up, don't break into
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somebody else's house. Well, that seems reasonable. Now, a politician who feels like that, does she have
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any, uh, power to influence the way the police handle these cases? There is a, uh, a level of
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independence between police and the political sphere. Uh, that said, I think police forces,
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generally speaking, don't want to be the subject of negative press or negative public attention.
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So I think a, a shift in the, the public's view, the way public pressure gets directed is an
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important part of, of shifting the culture at the level of the police, at the level of prosecutors.
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Um, and politicians are a part of that or a part of that, that general, um, climate that will,
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I think nudge police in the right directions. Uh, but then more importantly than that, if we're
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discussing the responsibility of politicians and all this, they should exercise their political power
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to, to align both the letter of the law and its implementation in a way that aligns with a, a
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defense of people's rights to life and, and to defend their own lives.
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Okay. Well, I'm going to come back to that point in a moment because really when you're getting down
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to that level of detail, you're talking about the provincial governments, the Canadian code,
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criminal code is what it is, but it's, it's administered in, at the provincial level.
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Um, but first I want to come back to what you said about a proportional response.
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Um, I wonder what is actually possible. Let's say it's you who's awakened in the middle of the night
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to find somebody in your house going through, going through the drawers or they've got the TV in
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their hand and they're on the way out the door. You don't know who they are and you don't know
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what they want or how much they want. You don't know if they're going to run away when confronted
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or whether they will come at you. In the Kawartha Lake case, that's making the headlines. The intruder
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was supposedly on his own, but he was wanted for other offense. So there's a dangerous man in the house
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as the person who is seconds away from being fast asleep. And it's just trying to make sense of
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this. How would you know that? How would you know to think about it? Is there somebody else with them?
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Do you know, uh, are they by the door to your children's bedroom? What will they do next?
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You don't know. In other words, you're supposed to make a response. Apparently that's proportionate
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to all these things that you don't know. And your life and the lives of others who depend on you for
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protection depends upon you getting it right in a split second. So what do the police advise?
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Call, cower, and wait. I've heard it expressed. To me, that seems to place a tremendous
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onus of forbearance upon the homeowner. And you say?
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I think you're right with maybe a couple of qualifications. So in terms of the ultimate
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resolution by the court, I do place a deal of trust in juries to make the right call. It's regular
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people who are tasked with deciding whether or not the use of force was reasonable in all the
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circumstances. Um, and for the most part, I think juries are capable of getting it right.
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That said, um, the, uh, the court, or I should add, the court has directed also that people,
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uh, fate in, in a self-defense scenario aren't required to weigh to a nicety. That's the term
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used by the court. Uh, the amount of force that they use, um, the problem with, with cases like this,
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uh, again, or, or to, to use an example, that's actually run its course through, through the
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courts. Um, there, there was an individual in Hamilton named Peter kill who, who engaged in,
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uh, uh, lethal force, uh, when someone had entered his property, there was, uh, also, uh, an individual
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in, I believe Manitoba, uh, Stanley who used lethal force. So he was ultimately acquitted. So in those
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cases, take the Stanley case, the individual was acquitted at the end of all of it.
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So you could say the law got it right. Uh, but perhaps he shouldn't have been charged in the
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first place. Uh, and that's at that level, the, the message that is being sent, if he is in fact
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being charged is that perhaps he shouldn't have, he shouldn't have used the force or he should have
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been more, uh, more restrained in using it or else just be prepared to, to be put through the ringer
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of the legal system after he does use it to defend his own life.
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Well, I guess there's a slight difference to the Manitoba case. Was it Manitoba or Saskatchewan?
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It might've been Saskatchewan. Yeah. Um, I'm not sure either. So, but, but there was a case anyway,
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and in that situation, I don't believe that the homeowner, the person doing the, the defending of
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his property was actually awakened from sleep. And it's a different thing to my point about the
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ability to make a decision to offer a proportionate response. If you've just woken up and it, it's all
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over in a second, you have to decide in a second what you're going to do. It's a rather different
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thing, um, even than when you are looking out of your, your kitchen window and see somebody interfering
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with property on your, on your farm, which I think was the situation. Um, uh, it's, these, these things
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seem to me to, uh, put a tremendous onus on the homeowner. One of the, the homeowner as the entirely
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innocent party shouldn't have to bear. And I suspect that you're not going to dispute with that with me,
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but what I would ask you is how can the provinces, the actual administrators of the justice, the people
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who pay for the policing, how can they actually deal with this? So that this kind of situation,
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if it happens, doesn't happen very often. And it's not something that the homeowner has to sit there
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worrying about. Well, we've, uh, you know, in response to this Lindsay situation, we've heard
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comments from both, uh, the Ontario and Alberta premiers, uh, expressing criticism of how this
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was handled. And so those provinces and any others can take the responsibility to change
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how the laws are actually implemented and enforced. Now, local police forces will have a measure of
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independence. And so it's, it's up to them to take responsibility for laying charges in a more,
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uh, restrained responsible manner. Uh, but with respect to the provinces, uh, it, the ball goes
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into their court after the police lay the charges. So once police lay the charges, the discretion is out
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of their hands. Uh, it then goes into the hands of provincial prosecutors who are responsible for the
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administration of criminal justice. And it each for every province, this is going to be true.
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There are policies that guide the use of prosecutorial discretion. Prosecutors are necessarily
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tasked with making a call, whether or not a charge is worth, uh, prosecuting. And if it's not,
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they can withdraw it, which leads to, uh, it evaporates essentially. Um, prosecutors will withdraw
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charges if there's no reasonable prospect of conviction, which makes intuitive sense. Uh,
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but they're not limited to that assessment. Prosecutors also are tasked with considering
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whether it's in the public interest to prosecute. Um, the classic example might be someone who commits
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a crime, but really is having more of a mental health issue that can be treated. And, and so for
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example, it can be diverted, uh, to a, to a mental health, uh, rather than a criminal route.
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And there's policies that the attorney generals will implement and distribute internally that
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then guide the application of that discretion for, for every prosecutor and prosecutors have
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to work within those policies. Uh, so for example, uh, the, the province can set a policy determining
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when to, uh, when it's acceptable to offer a plea deal on a charge of impaired driving, you know,
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for if a person breathes over a certain amount, or if they, uh, maybe if they've had multiple offenses,
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uh, a plea will be off the table. So in that same vein, it's open to a province to make, uh, uh,
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uh, policy decision and say, it is not in the public interest to vigorously prosecute people who
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are making those difficult calls, uh, those difficult decisions at three in the morning when they've
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been awakened, awoken by an intruder and use force to defend themselves. So the province can implement
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standards that they could ask prosecutors to look at and to make a decision in cases where
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someone's home has been entered in the middle of the night, whether prosecution is really in
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the public interest and if not to withdraw the charges. So that would rest with the office of
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the attorney general in each respective province. That's right. And so then the political heat that
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the police are trying to avoid would land right there on that elected individual who has his own
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incentives for dodging it, I guess. Uh, or incentives for claiming the praise, right? If people really are
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upset at this, then there's, there's an opportunity for a politician to, to, uh, do something popular.
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So we, uh, well, that, uh, that's actually a good point. Uh, in respect to the, are we worrying about
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something that doesn't happen very often or are there actually a lot of cases that we don't hear
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about where people have defended themselves and have in fact gone to jail or been fined or paid
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some penalty? How often does this situation crop up that we should worry about it?
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Uh, I, I'm not able to, to speak to how common it is. Uh, you know, uh, uh, I'm not aware of the
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stats on this, but I will say that the, the effect goes beyond the individual case. There's a chilling
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effect. Uh, at the start of this interview, you asked me about the message being sent to Canadians
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about whether or not they have a right to self-defense. And I think for a lot of people who see a case
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like this come into the news, the message they receive loud and fear is I, I should be very
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hesitant to, to engage in self-defense. Uh, when I'm making that decision, I I'm choosing between
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trying to defend my life or trying to avoid criminal, the possibility of criminal liability.
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So really the man who decides to throw the intruder right before he comes near his wife and his
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children will act, they will be the hero because he's not only facing the intruder, he's facing all
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the possible consequences that come later. Right. What a sad situation.
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Our team, thank you very much for shedding your wisdom upon this. Um, we, I, I won't ask you to
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guess what's going to happen in the Lindsay case. There are still too many details that have not been
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been made public, but certainly my sympathies are with the gentleman who is, uh, has been charged
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with defending his, his home. And I think a lot of people watching this program will probably feel the
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same way. So thanks for explaining what's really behind this. Thanks for having me on. You're very
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welcome for the Western standard. I'm Nigel Hatterford. Good night.