Western Standard - HANNAFORD： Your non-existent right to defend your home

00:00:00.000 Good evening, Western Standard viewers, and welcome to Hannaford, a weekly politics show.

00:00:21.900 It is Thursday, August the 28th. Last week, an Ontario man was charged with aggravated

00:00:28.320 assault and assault with a weapon after he defended himself and his home against another

00:00:33.000 man who had broken in. This famous case involves an intruder who was allegedly stabbed and remains

00:00:39.680 in hospital. Canadians, coast to coast, are deeply concerned that the homeowner was charged.

00:00:49.000 Do Canadians not have a right to defend themselves and their homes against intruders?

00:00:56.520 With me today is Hatim Keir, a constitutional and criminal lawyer whose work is funded

00:01:02.560 by the Justice Center for Constitutional Freedoms. Welcome to the show, Hatim. 0.69

00:01:07.520 Hi, thank you for having me.

00:01:09.520 Hatim, let's cut to the chase. There are two questions here, it seems to me, that need to

00:01:15.440 be dealt with first. One, it seems like the message is that Canadians don't have a right

00:01:21.400 to defend themselves and their homes, and who actually says so? Is that the police messaging

00:01:27.880 that? Is that the accumulated wisdom of the courts, or is it Parliament itself? And then

00:01:34.020 the second question is, to me, something seems to have changed. I can't imagine this case coming

00:01:41.740 forward at the time that I started my journalism career a very, very long time ago. So what's

00:01:50.980 your sense of what is going on, what is driving this apparently bizarre situation?

00:01:57.060 Well, to start with your first question, I think you're right to say that the message is Canadians

00:02:03.360 don't have a right to self-defense. And that is the state of things. As for who's making it that way,

00:02:10.660 it's a, well, it starts with Parliament, because the criminal code is their legislation, criminal

00:02:17.600 laws under the federal jurisdiction. And then more broadly than not, you could attribute it

00:02:22.640 to the justice system as a whole. In terms of what's changed, it's a combination of factors.

00:02:33.520 So the criminal code was amended back in 2012, to make the current rules for self-defense as they are.

00:02:42.140 And the rules turn on reasonableness. It's an assessment of reasonableness. And that decision is

00:02:48.560 ultimately going to be made at a trial by the jury. The jury is made up of 12 regular people. And so what

00:02:57.380 is reasonable ends up turning on what people tend to think is reasonable. Taken more broadly, though,

00:03:03.780 it, it's affected by the judges jurisprudence on what's reasonable. And then even, you know,

00:03:10.940 going right back to the beginning of, of one of these charges, it's affected by, or it's at least

00:03:17.580 the, the, the fact that situations like this arise turns on the fact that there's police who are laying

00:03:24.440 the charges in the first place. So they show up to the scene, they, they assess what happened. And

00:03:29.160 in their view, it makes sense to lay charges against this individual whose home was just,

00:03:35.040 was just broken and entered. And then it's in the hands of prosecutors who choose to prosecute

00:03:42.040 those offenses, as opposed to diverting them or withdrawing them. And then that, and then that

00:03:48.000 leads to the, to it falling into the hands of the court and then ultimately the jury.

00:03:51.600 But, you know, I think so many of us feel that there is something about somebody invading your

00:03:58.520 property, your space, that's deeply offensive. It's out of, out of all proportion to the actual

00:04:05.600 loss that you might incur. It's, it's sort of dishonoring and it makes people angry. And it seems

00:04:14.160 that the legal system is saying, no, no, you shouldn't be angry. You've got to be reasonable about this.

00:04:20.320 And I wonder where that line of, well, perhaps you disagree with my analysis, but if you do agree,

00:04:29.080 then how, how did that line of reasoning enter the legal system? Who did it serve?

00:04:37.160 Well, to, to go to your, your point about the, the offense of having someone break and enter into

00:04:43.620 your house, the law historically taking a broad view, isn't, uh, isn't ignorant of that fact.

00:04:50.580 Uh, when it comes to, uh, search and seizure law, the court recognizes that a man's home is his castle.

00:04:57.940 When it comes to, um, uh, let's say sentencing someone for breaking and entering the court will

00:05:04.460 absolutely recognize the, the harm caused by that sort of violent intrusion into a person's space.

00:05:11.820 Uh, and then when it comes to self-defense, historically, the court has recognized that a

00:05:16.580 person isn't obligated to retreat within their own house. Now that said, uh, I, I, I don't completely

00:05:24.740 disagree with the premise of your question. I, I think you're right to point out that there seems to

00:05:28.620 be a disregard for that when you see a case like this, uh, come through the court system and, and

00:05:32.960 this isn't the only one, uh, there, there've been others in recent years. Uh, I think part of what's

00:05:39.240 happening is a, an over-willingness on the part of police to charge and then let the courts figure it

00:05:48.980 out. And so, you know, they see a person who, who did commit by the letter of law, they did, uh,

00:05:56.800 use force against another person. So if it's not self-defense, he would be guilty of, uh, let's say

00:06:02.360 it's assault or assault with a weapon. And so, so they lay the charge. And then if he has a defense,

00:06:07.540 they leave it to, to that, to the courts to sort that out. The, the problem with that, and I think

00:06:12.320 what offends the sensibilities of probably a great deal of Canadians is that there's a punishment in

00:06:18.400 the process. If you're charged with a criminal offense, it'll take years, uh, perhaps, uh, it can range

00:06:26.300 from a year and a half upwards to three years, depending on the nature of the charges and the

00:06:30.880 procedure used, but it can take years to resolve. In the meantime, a person is dealing with the stress

00:06:36.820 of the potential criminal conviction that results the criminal, uh, you know, the possibility of a

00:06:42.840 criminal, uh, a criminal record, the potential of jail time in situations where the self-defense

00:06:49.560 ends in a homicide. There's a pretty stark reality that's facing this person where they could either

00:06:55.800 walk free at the end of this trial or face life in prison. Uh, and then even, even if they get

00:07:01.260 acquitted, uh, they'll have spent thousands and thousands of dollars in their own defense.

00:07:07.200 And I think people see that and probably rightfully think that that should, that, that entire process

00:07:14.200 should have been avoided if the situation clearly appears to be self-defense.

00:07:18.980 Now you say that the discretion rests with the police and that of course is the case, but, and there seems

00:07:29.200 to be a willingness to just throw the book around and let the court sort it out. Don't think the police

00:07:36.120 always thought this way. Is there, is this anything at all to do with the fact that the police have had

00:07:42.220 bad press, uh, over the last years, often in the hands of woke Canadians, uh, and they just don't

00:07:49.680 particularly want the aggravation. So instead of making a decision to not charge for which they might

00:07:56.980 be criticized by all the usual suspects, they take the approach you've described, give it to the courts,

00:08:04.300 let them sort it out too bad for the fellow, but it's not my money. Is that, is that how it works?

00:08:09.960 I'm not a police officer. I don't know exactly what the cause is, but my suspicions align with

00:08:16.040 yours. I think it is, if they lay the charge, it, I think it's arguably out of their court at that

00:08:23.500 point. They can, uh, they can direct the responsibility to other parties in the justice

00:08:29.920 system, the prosecutor and, and ultimately the court. Uh, and perhaps it makes it harder to fault

00:08:35.980 them for the decision. Whereas if they do decide not to lay a charge, uh, the buck stops squarely

00:08:42.680 with the police. Uh, no one else in the justice system has the authority to then intervene and lay

00:08:47.960 that charge. Well, it has always been my understanding that the police are very responsive

00:08:55.420 to political direction. For example, if a politician holding office is very concerned about drunk

00:09:05.240 driving, then the police will get that message and they will be tough on drunk driving, but it might

00:09:12.400 be something else in which case they'll be tough on that. This is not to say that police routinely

00:09:18.500 ignore offenses that are not politically motivated, or I should rephrase that, that are, that are some

00:09:25.940 politician's pet project, but they certainly will respond if somebody makes a point of saying,

00:09:33.320 we really want you to care about this. So is perhaps the way to deal with this kind of thing

00:09:42.700 to put politicians in place who actually have an understanding of what it means to be

00:09:54.480 awoken in your own home to find an intruder there and that you do the reasonable thing.

00:09:59.800 I mean, Danielle Smith, Premier of Alberta, uh, commented at one of her town hall meetings that,

00:10:05.200 you know, if you don't want to get a, this is a paraphrase, she didn't say these very words,

00:10:09.360 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

00:10:13.900 somebody else's house. Well, that seems reasonable. Now, a politician who feels like that, does she have

00:10:19.920 any, uh, power to influence the way the police handle these cases? There is a, uh, a level of

00:10:27.420 independence between police and the political sphere. Uh, that said, I think police forces,

00:10:33.840 generally speaking, don't want to be the subject of negative press or negative public attention.

00:10:38.780 So I think a, a shift in the, the public's view, the way public pressure gets directed is an

00:10:47.700 important part of, of shifting the culture at the level of the police, at the level of prosecutors.

00:10:54.360 Um, and politicians are a part of that or a part of that, that general, um, climate that will,

00:11:01.520 I think nudge police in the right directions. Uh, but then more importantly than that, if we're

00:11:07.080 discussing the responsibility of politicians and all this, they should exercise their political power

00:11:12.680 to, to align both the letter of the law and its implementation in a way that aligns with a, a

00:11:19.940 defense of people's rights to life and, and to defend their own lives.

00:11:25.100 Okay. Well, I'm going to come back to that point in a moment because really when you're getting down

00:11:30.520 to that level of detail, you're talking about the provincial governments, the Canadian code,

00:11:34.620 criminal code is what it is, but it's, it's administered in, at the provincial level.

00:11:40.300 Um, but first I want to come back to what you said about a proportional response.

00:11:46.840 Um, I wonder what is actually possible. Let's say it's you who's awakened in the middle of the night

00:11:53.020 to find somebody in your house going through, going through the drawers or they've got the TV in

00:11:58.480 their hand and they're on the way out the door. You don't know who they are and you don't know

00:12:04.320 what they want or how much they want. You don't know if they're going to run away when confronted

00:12:11.360 or whether they will come at you. In the Kawartha Lake case, that's making the headlines. The intruder

00:12:17.940 was supposedly on his own, but he was wanted for other offense. So there's a dangerous man in the house

00:12:27.900 as the person who is seconds away from being fast asleep. And it's just trying to make sense of

00:12:34.620 this. How would you know that? How would you know to think about it? Is there somebody else with them?

00:12:39.620 Do you know, uh, are they by the door to your children's bedroom? What will they do next?

00:12:44.800 You don't know. In other words, you're supposed to make a response. Apparently that's proportionate

00:12:50.020 to all these things that you don't know. And your life and the lives of others who depend on you for

00:12:56.480 protection depends upon you getting it right in a split second. So what do the police advise?

00:13:07.420 Call, cower, and wait. I've heard it expressed. To me, that seems to place a tremendous

00:13:15.380 onus of forbearance upon the homeowner. And you say?

00:13:23.800 I think you're right with maybe a couple of qualifications. So in terms of the ultimate

00:13:29.900 resolution by the court, I do place a deal of trust in juries to make the right call. It's regular

00:13:37.180 people who are tasked with deciding whether or not the use of force was reasonable in all the

00:13:41.020 circumstances. Um, and for the most part, I think juries are capable of getting it right.

00:13:47.260 That said, um, the, uh, the court, or I should add, the court has directed also that people,

00:13:54.340 uh, fate in, in a self-defense scenario aren't required to weigh to a nicety. That's the term

00:14:01.080 used by the court. Uh, the amount of force that they use, um, the problem with, with cases like this,

00:14:08.460 uh, again, or, or to, to use an example, that's actually run its course through, through the

00:14:13.480 courts. Um, there, there was an individual in Hamilton named Peter kill who, who engaged in,

00:14:19.820 uh, uh, lethal force, uh, when someone had entered his property, there was, uh, also, uh, an individual

00:14:27.360 in, I believe Manitoba, uh, Stanley who used lethal force. So he was ultimately acquitted. So in those

00:14:33.980 cases, take the Stanley case, the individual was acquitted at the end of all of it.

00:14:38.300 So you could say the law got it right. Uh, but perhaps he shouldn't have been charged in the

00:14:42.540 first place. Uh, and that's at that level, the, the message that is being sent, if he is in fact

00:14:49.580 being charged is that perhaps he shouldn't have, he shouldn't have used the force or he should have

00:14:55.100 been more, uh, more restrained in using it or else just be prepared to, to be put through the ringer

00:15:01.160 of the legal system after he does use it to defend his own life.

00:15:04.180 Well, I guess there's a slight difference to the Manitoba case. Was it Manitoba or Saskatchewan?

00:15:10.980 It might've been Saskatchewan. Yeah. Um, I'm not sure either. So, but, but there was a case anyway,

00:15:16.820 and in that situation, I don't believe that the homeowner, the person doing the, the defending of

00:15:24.100 his property was actually awakened from sleep. And it's a different thing to my point about the

00:15:31.940 ability to make a decision to offer a proportionate response. If you've just woken up and it, it's all

00:15:40.420 over in a second, you have to decide in a second what you're going to do. It's a rather different

00:15:45.140 thing, um, even than when you are looking out of your, your kitchen window and see somebody interfering

00:15:52.100 with property on your, on your farm, which I think was the situation. Um, uh, it's, these, these things

00:16:01.460 seem to me to, uh, put a tremendous onus on the homeowner. One of the, the homeowner as the entirely

00:16:09.860 innocent party shouldn't have to bear. And I suspect that you're not going to dispute with that with me,

00:16:14.740 but what I would ask you is how can the provinces, the actual administrators of the justice, the people

00:16:23.540 who pay for the policing, how can they actually deal with this? So that this kind of situation,

00:16:31.220 if it happens, doesn't happen very often. And it's not something that the homeowner has to sit there

00:16:38.500 worrying about. Well, we've, uh, you know, in response to this Lindsay situation, we've heard

00:16:44.820 comments from both, uh, the Ontario and Alberta premiers, uh, expressing criticism of how this

00:16:50.260 was handled. And so those provinces and any others can take the responsibility to change

00:16:57.380 how the laws are actually implemented and enforced. Now, local police forces will have a measure of

00:17:04.500 independence. And so it's, it's up to them to take responsibility for laying charges in a more,

00:17:10.660 uh, restrained responsible manner. Uh, but with respect to the provinces, uh, it, the ball goes

00:17:18.500 into their court after the police lay the charges. So once police lay the charges, the discretion is out

00:17:24.180 of their hands. Uh, it then goes into the hands of provincial prosecutors who are responsible for the

00:17:29.540 administration of criminal justice. And it each for every province, this is going to be true.

00:17:36.260 There are policies that guide the use of prosecutorial discretion. Prosecutors are necessarily

00:17:43.780 tasked with making a call, whether or not a charge is worth, uh, prosecuting. And if it's not,

00:17:49.780 they can withdraw it, which leads to, uh, it evaporates essentially. Um, prosecutors will withdraw

00:17:57.860 charges if there's no reasonable prospect of conviction, which makes intuitive sense. Uh,

00:18:03.300 but they're not limited to that assessment. Prosecutors also are tasked with considering

00:18:07.940 whether it's in the public interest to prosecute. Um, the classic example might be someone who commits

00:18:14.500 a crime, but really is having more of a mental health issue that can be treated. And, and so for

00:18:20.020 example, it can be diverted, uh, to a, to a mental health, uh, rather than a criminal route.

00:18:26.420 And there's policies that the attorney generals will implement and distribute internally that

00:18:31.540 then guide the application of that discretion for, for every prosecutor and prosecutors have

00:18:37.060 to work within those policies. Uh, so for example, uh, the, the province can set a policy determining

00:18:45.060 when to, uh, when it's acceptable to offer a plea deal on a charge of impaired driving, you know,

00:18:52.820 for if a person breathes over a certain amount, or if they, uh, maybe if they've had multiple offenses,

00:18:58.500 uh, a plea will be off the table. So in that same vein, it's open to a province to make, uh, uh,

00:19:06.500 uh, policy decision and say, it is not in the public interest to vigorously prosecute people who

00:19:14.820 are making those difficult calls, uh, those difficult decisions at three in the morning when they've

00:19:19.780 been awakened, awoken by an intruder and use force to defend themselves. So the province can implement

00:19:26.900 standards that they could ask prosecutors to look at and to make a decision in cases where

00:19:32.820 someone's home has been entered in the middle of the night, whether prosecution is really in

00:19:37.700 the public interest and if not to withdraw the charges. So that would rest with the office of

00:19:43.300 the attorney general in each respective province. That's right. And so then the political heat that

00:19:49.780 the police are trying to avoid would land right there on that elected individual who has his own

00:19:57.140 incentives for dodging it, I guess. Uh, or incentives for claiming the praise, right? If people really are

00:20:04.900 upset at this, then there's, there's an opportunity for a politician to, to, uh, do something popular.

00:20:11.700 So we, uh, well, that, uh, that's actually a good point. Uh, in respect to the, are we worrying about

00:20:21.780 something that doesn't happen very often or are there actually a lot of cases that we don't hear

00:20:28.260 about where people have defended themselves and have in fact gone to jail or been fined or paid

00:20:34.580 some penalty? How often does this situation crop up that we should worry about it?

00:20:40.420 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

00:20:45.780 stats on this, but I will say that the, the effect goes beyond the individual case. There's a chilling

00:20:51.140 effect. Uh, at the start of this interview, you asked me about the message being sent to Canadians

00:20:55.140 about whether or not they have a right to self-defense. And I think for a lot of people who see a case

00:21:00.580 like this come into the news, the message they receive loud and fear is I, I should be very

00:21:05.540 hesitant to, to engage in self-defense. Uh, when I'm making that decision, I I'm choosing between

00:21:11.380 trying to defend my life or trying to avoid criminal, the possibility of criminal liability.

00:21:19.060 So really the man who decides to throw the intruder right before he comes near his wife and his

00:21:25.220 children will act, they will be the hero because he's not only facing the intruder, he's facing all

00:21:32.660 the possible consequences that come later. Right. What a sad situation.

00:21:39.300 Our team, thank you very much for shedding your wisdom upon this. Um, we, I, I won't ask you to

00:21:47.700 guess what's going to happen in the Lindsay case. There are still too many details that have not been

00:21:52.900 been made public, but certainly my sympathies are with the gentleman who is, uh, has been charged

00:21:59.540 with defending his, his home. And I think a lot of people watching this program will probably feel the

00:22:06.820 same way. So thanks for explaining what's really behind this. Thanks for having me on. You're very

00:22:12.420 welcome for the Western standard. I'm Nigel Hatterford. Good night.

Western Standard - August 31, 2025

HANNAFORD： Your non-existent right to defend your home

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