A homeowner in Ontario was charged with aggravated assault and assault with a weapon after he defended himself and his home against another man who had broken into the same home. Does this case suggest that Canadians don t have a right to self-defense in their own homes? In this episode, we talk to constitutional and criminal lawyer Hattie Keir to find out.
00:01:09.840Hattim, let's cut to the chase. There are two questions here, it seems to me, that need to be
00:01:15.600dealt with first. One, it seems like the message is that Canadians don't have a right to defend
00:01:21.860themselves and their homes? And who actually says so? Is not the police messaging that? Is that the
00:01:28.900accumulated wisdom of the courts, or is it Parliament itself? And then the second question
00:01:34.900is, to me, something seems to have changed. I can't imagine this case coming forward at the time
00:01:43.280that I started my journalism career a very, very long time ago. So what's your sense of
00:01:51.940what is going on? What is driving this apparently bizarre situation?
00:01:58.640Well, to start with your first question, I think you're right to say that the message is Canadians
00:02:03.340don't have a right to self-defense. And that is the state of things. As for who's making it that
00:02:10.400way it's a uh well it starts with parliament because the criminal code is is their legislation
00:02:16.800uh criminal laws under the federal jurisdiction um and then more broadly than that you could you
00:02:21.980could attribute it to the the justice system as a whole um in terms of what's changed uh
00:02:31.040it's a combination of factors so the the criminal code was amended back in 2012
00:02:37.08012 to make the current rules for self-defense as they are and the rules turn on reasonableness
00:02:45.300it's an assessment of reasonableness and that decision is ultimately going to be made at a
00:02:50.940trial by the jury the jury is made up of 12 regular people and so what is reasonable ends
00:02:58.860up turning on what people tend to think is reasonable taken more broadly though it it's
00:03:05.040It'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.
00:03:25.740So 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.
00:03:38.400And then it's in the hands of prosecutors who choose to prosecute those offenses as opposed to diverting them or withdrawing them.
00:03:46.640And then that leads to it falling into the hands of the court and then ultimately the jury.
00:03:51.560but you know i think so many of us feel that there is something about somebody invading your
00:03:58.520property your space that's deeply offensive it's out of improve out of all proportion to the actual
00:04:05.720loss that you might incur it's it's sort of dishonoring and it makes people angry and it
00:04:13.800seems that the legal system is saying no no you shouldn't be angry you've got to be reasonable
00:04:19.640about this and i wonder where that line of uh well perhaps you disagree that but with my analysis but
00:04:27.400if you do agree then how how did that line of reasoning enter the legal system
00:04:33.920who did it serve well to to go to your your point about the the offense of having someone break and
00:04:43.180enter into your house the law historically taking a broad view isn't uh isn't ignorant of that fact
00:04:50.160when it comes to search and seizure law the court recognizes that a man's home is his castle0.58
00:04:57.540when it comes to um uh let's say sentencing someone for breaking and entering the court
00:05:04.280will absolutely recognize the the harm caused by that sort of violent intrusion into a person's
00:05:10.720space. And then when it comes to self-defense, historically, the court has recognized that a
00:05:16.560person isn't obligated to retreat within their own house. Now, that said, I don't completely
00:05:24.740disagree with the premise of your question. I think you're right to point out that there seems
00:05:28.420to be a disregard for that when you see a case like this come through the court system. And this
00:05:33.080isn't the only one. There have been others in recent years. I think part of what's happening
00:05:39.580is a an overwillingness on the part of police to charge and then let the courts figure it out
00:05:49.180and so you know they see a person who who did commit by the letter of the law they did
00:05:56.000use force against another person so if it's not self-defense he would be guilty of let's say it's
00:06:02.480assault or assault with a weapon and so so they lay the charge and then if he has a defense they
00:06:07.700leave it to the courts to sort that out. The problem with that, and I think what offends
00:06:13.120the sensibilities of probably a great deal of Canadians, is that there's a punishment in the
00:06:18.500process. If you're charged with a criminal offense, it'll take years. Perhaps it can range
00:06:26.280from a year and a half upwards to three years, depending on the nature of the charges and the
00:06:30.860procedure used, but it can take years to resolve. In the meantime, a person is dealing with the
00:06:36.220stress of the potential criminal conviction that results the criminal uh you know the possibility
00:06:42.380of a criminal uh a criminal record the the potential of jail time in situations where
00:06:48.780the self-defense ends in a homicide there's a pretty stark reality that's facing this person
00:06:54.940where they could either walk free at the end of this trial or face life in prison
00:06:59.260uh and then even even if they get acquitted uh they'll have spent thousands and thousands of
00:07:05.020dollars in their own defense and i think people see that and probably rightfully think that that
00:07:12.460should that that entire process should have been avoided if the situation clearly appears to be
00:07:18.260self-defense now you say that the discretion rests with the police and that of course is the case
00:07:27.280but and there seems to be a willingness to just throw the book around and let the court sort it
00:07:33.620out don't think the police always thought this way is there is this anything at all to do with
00:07:40.840the fact that the police have had bad press over the last years often in the hands of woke canadians
00:07:47.680and they just don't particularly want the aggravation so instead of making a decision
00:07:53.880to not charge for which they might be criticized by all the usual suspects
00:08:00.180they take the approach you've described give it to the courts let them sort it out too bad for
00:08:06.020the fellow but it's not my money is that is that how it works i'm not a police officer i don't know
00:08:13.020exactly what the cause is but my suspicions align with yours i i think it is if they lay the charge
00:08:19.920i i think it's arguably out of their court at that point they can uh they can direct the
00:08:27.340responsibility to other parties in the justice system the prosecutor and ultimately the court
00:08:32.760and perhaps it makes it harder to fault them for the decision whereas if they do decide not to lay
00:08:40.100a charge the buck stops squarely with the police no one else in the justice system has the authority
00:08:46.500to then intervene and lay that charge well it has always been my understanding that the police are
00:08:54.260very responsive to political direction. For example, if a politician holding office is very
00:09:04.060concerned about drunk driving, then the police will get that message and they will be tough on
00:09:10.120drunk driving. But it might be something else, in which case they'll be tough on that. This is not
00:09:16.600to say that police routinely ignore offenses that are not politically motivated, or I should
00:09:23.720rephrase that that are some politicians pet project but they certainly will respond if
00:09:31.160somebody makes a point of saying we really want you to care about this so is perhaps the way to
00:09:40.440deal with this kind of thing to put politicians in place who actually have an understanding
00:09:49.000of what it means to be awoken in your own home
00:14:38.280So 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.
00:15:04.820Well, I guess there's a slight difference.
00:15:07.840The Manitoba case, was it Manitoba or Saskatchewan?
00:18:19.660And so, for example, it can be diverted
00:18:21.220to a mental health route rather than a criminal route.
00:18:26.300And there's policies that the attorney generals
00:18:29.040will implement and distribute internally
00:18:31.320that then guide the application of that discretion
00:18:34.360for for every prosecutor and prosecutors have to work within those policies so for example uh the
00:18:40.580the province can set a policy determining when to uh when it's acceptable to offer a plea deal
00:18:49.800on a charge of impaired driving you know for if a person breathes over a certain amount or if they
00:18:56.220maybe if they've had multiple offenses a plea will be off the table so in that same vein
00:19:03.800It'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.
00:19:24.100So 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.
00:19:41.580So that would rest with the office of the attorney general in each respective province.