Western Standard - 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.

00:00:21.880 It is Thursday, August the 28th. Last week, an Ontario man

00:00:26.240 was charged with aggravated assault and assault with a weapon after he defended himself and his

00:00:31.900 home against another man who had broken in. This famous case involves an intruder who was

00:00:37.800 allegedly stabbed and remains in hospital. Canadians, coast to coast, are deeply concerned

00:00:44.980 that the homeowner was charged. Do Canadians not have a right to defend themselves and their homes

00:00:53.620 against intruders. With me today is Hattim Keir, a constitutional and criminal lawyer whose work

00:01:01.840 is funded by the Justice Center for Constitutional Freedoms. Welcome to the show, Hattim. 0.99

00:01:07.640 Hi, thank you for having me.

00:01:09.840 Hattim, let's cut to the chase. There are two questions here, it seems to me, that need to be

00:01:15.600 dealt with first. One, it seems like the message is that Canadians don't have a right to defend

00:01:21.860 themselves and their homes? And who actually says so? Is not the police messaging that? Is that the

00:01:28.900 accumulated wisdom of the courts, or is it Parliament itself? And then the second question

00:01:34.900 is, to me, something seems to have changed. I can't imagine this case coming forward at the time

00:01:43.280 that I started my journalism career a very, very long time ago. So what's your sense of

00:01:51.940 what is going on? What is driving this apparently bizarre situation?

00:01:58.640 Well, to start with your first question, I think you're right to say that the message is Canadians

00:02:03.340 don't have a right to self-defense. And that is the state of things. As for who's making it that

00:02:10.400 way it's a uh well it starts with parliament because the criminal code is is their legislation

00:02:16.800 uh criminal laws under the federal jurisdiction um and then more broadly than that you could you

00:02:21.980 could attribute it to the the justice system as a whole um in terms of what's changed uh

00:02:31.040 it's a combination of factors so the the criminal code was amended back in 2012

00:02:37.080 12 to make the current rules for self-defense as they are and the rules turn on reasonableness

00:02:45.300 it's an assessment of reasonableness and that decision is ultimately going to be made at a

00:02:50.940 trial by the jury the jury is made up of 12 regular people and so what is reasonable ends

00:02:58.860 up turning on what people tend to think is reasonable taken more broadly though it it's

00:03:05.040 It's affected by the judge's jurisprudence on what's reasonable. And then even, you know, going right back to the beginning of one of these charges, it's affected by, or it's at least the fact that situations like this arise turns on the fact that there's police who are laying the charges in the first place.

00:03:25.740 So they show up to the scene, they assess what happened, and in their view, it makes sense to lay charges against this individual whose home was just broken and entered.

00:03:38.400 And then it's in the hands of prosecutors who choose to prosecute those offenses as opposed to diverting them or withdrawing them.

00:03:46.640 And then that leads to it falling into the hands of the court and then ultimately the jury.

00:03:51.560 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 improve out of all proportion to the actual

00:04:05.720 loss that you might incur it's it's sort of dishonoring and it makes people angry and it

00:04:13.800 seems that the legal system is saying no no you shouldn't be angry you've got to be reasonable

00:04:19.640 about this and i wonder where that line of uh well perhaps you disagree that but with my analysis but

00:04:27.400 if you do agree then how how did that line of reasoning enter the legal system

00:04:33.920 who did it serve well to to go to your your point about the the offense of having someone break and

00:04:43.180 enter into your house the law historically taking a broad view isn't uh isn't ignorant of that fact

00:04:50.160 when it comes to search and seizure law the court recognizes that a man's home is his castle 0.58

00:04:57.540 when it comes to um uh let's say sentencing someone for breaking and entering the court

00:05:04.280 will absolutely recognize the the harm caused by that sort of violent intrusion into a person's

00:05:10.720 space. And then when it comes to self-defense, historically, the court has recognized that a

00:05:16.560 person isn't obligated to retreat within their own house. Now, that said, I don't completely

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

00:05:28.420 to be a disregard for that when you see a case like this come through the court system. And this

00:05:33.080 isn't the only one. There have been others in recent years. I think part of what's happening

00:05:39.580 is a an overwillingness on the part of police to charge and then let the courts figure it out

00:05:49.180 and so you know they see a person who who did commit by the letter of the law they did

00:05:56.000 use force against another person so if it's not self-defense he would be guilty of let's say it's

00:06:02.480 assault or assault with a weapon and so so they lay the charge and then if he has a defense they

00:06:07.700 leave it to the courts to sort that out. The problem with that, and I think what offends

00:06:13.120 the sensibilities of probably a great deal of Canadians, is that there's a punishment in the

00:06:18.500 process. If you're charged with a criminal offense, it'll take years. Perhaps it can range

00:06:26.280 from a year and a half upwards to three years, depending on the nature of the charges and the

00:06:30.860 procedure used, but it can take years to resolve. In the meantime, a person is dealing with the

00:06:36.220 stress of the potential criminal conviction that results the criminal uh you know the possibility

00:06:42.380 of a criminal uh a criminal record the the potential of jail time in situations where

00:06:48.780 the self-defense ends in a homicide there's a pretty stark reality that's facing this person

00:06:54.940 where they could either walk free at the end of this trial or face life in prison

00:06:59.260 uh and then even even if they get acquitted uh they'll have spent thousands and thousands of

00:07:05.020 dollars in their own defense and i think people see that and probably rightfully think that that

00:07:12.460 should that that entire process should have been avoided if the situation clearly appears to be

00:07:18.260 self-defense now you say that the discretion rests with the police and that of course is the case

00:07:27.280 but and there seems to be a willingness to just throw the book around and let the court sort it

00:07:33.620 out don't think the police always thought this way is there is this anything at all to do with

00:07:40.840 the fact that the police have had bad press over the last years often in the hands of woke canadians

00:07:47.680 and they just don't particularly want the aggravation so instead of making a decision

00:07:53.880 to not charge for which they might be criticized by all the usual suspects

00:08:00.180 they take the approach you've described give it to the courts let them sort it out too bad for

00:08:06.020 the fellow but it's not my money is that is that how it works i'm not a police officer i don't know

00:08:13.020 exactly what the cause is but my suspicions align with yours i i think it is if they lay the charge

00:08:19.920 i i think it's arguably out of their court at that point they can uh they can direct the

00:08:27.340 responsibility to other parties in the justice system the prosecutor and ultimately the court

00:08:32.760 and perhaps it makes it harder to fault them for the decision whereas if they do decide not to lay

00:08:40.100 a charge the buck stops squarely with the police no one else in the justice system has the authority

00:08:46.500 to then intervene and lay that charge well it has always been my understanding that the police are

00:08:54.260 very responsive to political direction. For example, if a politician holding office is very

00:09:04.060 concerned about drunk driving, then the police will get that message and they will be tough on

00:09:10.120 drunk driving. But it might be something else, in which case they'll be tough on that. This is not

00:09:16.600 to say that police routinely ignore offenses that are not politically motivated, or I should

00:09:23.720 rephrase that that are some politicians pet project but they certainly will respond if

00:09:31.160 somebody makes a point of saying we really want you to care about this so is perhaps the way to

00:09:40.440 deal with this kind of thing to put politicians in place who actually have an understanding

00:09:49.000 of what it means to be awoken in your own home

00:09:55.960 to find an intruder there

00:09:57.460 and that you do the reasonable thing.

00:09:59.800 I mean, Danielle Smith, Premier of Alberta,

00:10:02.320 commented at one of her town hall meetings

00:10:04.760 that if you don't want to get a...

00:10:06.640 This is a paraphrase.

00:10:08.200 She didn't say these very words,

00:10:09.420 but this was the gist of it.

00:10:10.660 But if you don't want to get beat up,

00:10:13.280 don't break into somebody else's house.

00:10:15.380 Well, that seems reasonable.

00:10:16.700 Now, a politician who feels like that, does she have any power to influence the way the police handle these cases? 1.00

00:10:24.640 There is a level of independence between police and the political sphere.

00:10:30.920 That said, I think police forces, generally speaking, don't want to be the subject of negative press or negative public attention.

00:10:38.700 so i think a shift in the the public's view the way public pressure gets directed is an important

00:10:47.980 part of of shifting the culture at the level of the police at the level of prosecutors

00:10:53.600 um and politicians are a part of that they're a part of that that general um climate that will i

00:11:01.500 think nudge police in the right directions uh but then more importantly than that if we're discussing

00:11:07.520 the responsibility of politicians and all this, they should exercise their political

00:11:12.280 power to align both the letter of the law and its implementation in a way that aligns

00:11:18.400 with a defense of people's rights to life and to defend their own lives.

00:11:25.060 Okay, well, I'm going to come back to that point in a moment, because really, when you're

00:11:29.900 getting down to that level of detail, you're talking about the provincial governments,

00:11:33.440 the canadian code criminal code is what it is but it's it's administered in at the provincial level

00:11:40.000 um but first i want to come back to what you said about a proportional response and i wonder what

00:11:48.720 is actually possible let's say it's you who's awakened in the middle of the night to find

00:11:54.080 somebody in your house going through going through the drawers or they've got the tv in their hand

00:11:58.640 and they're on the way out the door you don't know who they are and you don't know what they want

00:12:06.880 or how much they want you don't know if they're going to run away when confronted

00:12:11.760 or whether they will come at you in the kawartha lake case that's making the headlines the intruder

00:12:17.920 was supposedly on his own but he was wanted for other offenses so there's a dangerous man

00:12:27.040 in the house as the person who is seconds away from being fast asleep and is just trying to make

00:12:34.080 sense of this how would you know that how would you know to think about it is there somebody else

00:12:39.120 with them do you know 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

00:12:50.240 to all these things that you don't know and your life and the lives of others who depend on you

00:12:56.240 for protection depends upon you getting it right in a split second so what do the police advise

00:13:07.360 call cower and wait i've heard it expressed to me that seems to place a tremendous

00:13:15.280 onus of forbearance upon the homeowner. And you say?

00:13:23.600 I think you're right with maybe a couple of qualifications. So in terms of the ultimate

00:13:29.880 resolution by the court, I do place a deal of trust in juries to make the right call. It's

00:13:36.860 regular people who are tasked with deciding whether or not the use of force was reasonable

00:13:40.540 in all the circumstances um and for the most part i think juries are capable of getting it right

00:13:46.380 that said um the uh the court or i should add the court has directed also that people

00:13:54.300 uh fate in a self-defense scenario aren't required to weigh to a nicety that's the term used by the

00:14:01.460 court uh the amount of force that they use um the problem with with cases like this uh again or or

00:14:10.040 But to use an example that's actually run its course through the courts, there was an

00:14:16.300 individual in Hamilton named Peter Kill who engaged in lethal force when someone had entered

00:14:24.300 his property.

00:14:25.420 There was also an individual in, I believe, Manitoba, Stanley, who used lethal force.

00:14:31.320 He was ultimately acquitted.

00:14:33.180 So in those cases, take the Stanley case, the individual was acquitted at the end of

00:14:37.820 all of it.

00:14:38.280 So you could say the law got it right, but perhaps he shouldn't have been charged in the first place. And at that level, the message that is being sent, if he is in fact being charged, is that perhaps he shouldn't have used the force or he should have been more restrained in using it, or else just be prepared to be put through the wringer of the legal system after he does use it to defend his own life.

00:15:04.820 Well, I guess there's a slight difference.

00:15:07.840 The Manitoba case, was it Manitoba or Saskatchewan?

00:15:11.180 It might have been Saskatchewan.

00:15:12.280 Yeah.

00:15:13.520 I'm not sure either, but there was a case anyway.

00:15:17.540 In that situation, I don't believe that the homeowner or the person doing the defending of his property was actually awakened from sleep.

00:15:26.860 and it's a different thing to my point about the ability to make a decision to offer a

00:15:35.420 proportionate response if you've just woken up and it's all over in a second you have to decide

00:15:42.280 in a second what you're going to do it's a rather different thing even than when you are looking out

00:15:49.420 of your your kitchen window and see somebody interfering with property on your on your farm

00:15:54.160 which I think was the situation.

00:16:00.140 These things seem to me to put a tremendous onus on the homeowner,

00:16:07.360 one that the homeowner as the entirely innocent party shouldn't have to bear.

00:16:11.880 And I suspect that you're not going to dispute that with me.

00:16:14.880 But what I would ask you is how can the provinces,

00:16:20.340 the actual administrators of the justice the people who pay for the policing how can they

00:16:26.480 actually deal with this so that this kind of situation if it happens doesn't happen very

00:16:34.060 often and it's not something that the homeowner has to sit there worrying about well we've uh

00:16:41.980 you know in response to this lindsey situation we've heard comments from both uh the ontario

00:16:46.840 and alberta premiers expressing criticism of how this was handled and so those provinces and any

00:16:54.360 others can take the responsibility to change how the laws are actually implemented and enforced

00:17:01.240 now local police forces will have a measure of independence and so it's it's up to them

00:17:07.080 to take responsibility for laying charges in a more uh restrained responsible manner

00:17:13.160 but with respect to the provinces it the ball goes into their court after the police lay the

00:17:20.340 charges so once police lay the charges the discretion is out of their hands it then goes

00:17:26.180 into the hands of provincial prosecutors who are responsible for the administration of criminal

00:17:30.680 justice and it each for every province this is going to be true there are policies that guide

00:17:37.860 the use of prosecutorial discretion. Prosecutors are necessarily tasked with making a call whether

00:17:45.300 or not a charge is worth prosecuting. And if it's not, they can withdraw it, which leads to

00:17:51.960 it evaporates, essentially. Prosecutors will withdraw charges if there's no reasonable

00:17:59.600 prospect of conviction, which makes intuitive sense. But they're not limited to that assessment.

00:18:05.380 prosecutors also are tasked with considering

00:18:07.940 whether it's in the public interest to prosecute.

00:18:11.980 The classic example might be someone who commits a crime

00:18:14.980 but really is having more of a mental health issue

00:18:18.700 that can be treated.

00:18:19.660 And so, for example, it can be diverted

00:18:21.220 to a mental health route rather than a criminal route.

00:18:26.300 And there's policies that the attorney generals

00:18:29.040 will implement and distribute internally

00:18:31.320 that then guide the application of that discretion

00:18:34.360 for for every prosecutor and prosecutors have to work within those policies so for example uh the

00:18:40.580 the province can set a policy determining when to uh when it's acceptable to offer a plea deal

00:18:49.800 on a charge of impaired driving you know for if a person breathes over a certain amount or if they

00:18:56.220 maybe if they've had multiple offenses a plea will be off the table so in that same vein

00:19:03.800 It's open to a province to make a policy decision and say it is not in the public interest to vigorously prosecute people who are making those difficult calls, those difficult decisions at three in the morning when they've been awakened, awoken by an intruder and use force to defend themselves.

00:19:24.100 So the province can implement standards that they could ask prosecutors to look at and to make a decision in cases where someone's home has been entered in the middle of the night, whether prosecution is really in the public interest and if not to withdraw the charges.

00:19:41.580 So that would rest with the office of the attorney general in each respective province.

00:19:46.200 That's right.

00:19:47.580 And so then the political heat that the police are trying to avoid

00:19:51.380 would land right there on that elected individual

00:19:55.020 who has his own incentives for dodging it, I guess.

00:20:00.920 Or incentives for claiming the praise, right?

00:20:04.160 If people really are upset at this,

00:20:05.760 then there's an opportunity for a politician to do something popular.

00:20:11.820 So, well, that's actually a good point.

00:20:16.640 uh in respect to the are we worrying about something that doesn't happen very often or are

00:20:24.800 there actually a lot of cases that we don't hear about where people have defended themselves and

00:20:30.400 have in fact gone to jail or been fined or paid some penalty how often does this situation crop

00:20:37.920 up we should worry about it i i'm not able to to speak to how common it is uh you know i i'm not

00:20:45.280 aware of the stats on this but i will say that the the effect goes beyond the individual case

00:20:50.480 there's a chilling effect at the start of this interview you asked me about the message being

00:20:54.320 sent to canadians about whether or not they have a right to self-defense and i think for a lot of

00:20:59.440 people who see a case like this come into the news the message they receive loud and fear is

00:21:04.320 i i should be very hesitant to to engage in self-defense when i'm making that decision i'm

00:21:09.840 choosing between trying to defend my life or trying to avoid criminal the possibility of

00:21:16.240 criminal liability so really the man who decides to throw the intruder right before he comes near

00:21:24.480 his wife and his children will act they will be the hero because he's not only facing the intruder

00:21:30.720 he's facing all the possible consequences that come later right what a sad situation

00:21:37.520 our team thank you very much for shedding your wisdom upon this um we i i won't ask you to guess

00:21:47.980 what's going to happen in the lindsay case there are still too many details that have not been

00:21:53.000 made public but certainly my sympathies are with the gentleman who is uh has been charged with

00:21:59.760 defending his his home and i think a lot of people watching this program will probably feel the same

00:22:07.160 way so thanks for explaining what's really behind this thanks for having me on you're very welcome

00:22:12.680 For the Western Standard, I'm Nigel Hatterford. Good night.

Western Standard - August 29, 2025

Your non-existent right to defend your home

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