Self-defence itself on trial in court of public opinion
The recent news of a Lindsay man being charged with aggravated assault and assault with a weapon, after finding an intruder inside his apartment, has ignited public opinion across Canada about the nature of self defence.
Early on Aug. 18, we know Kawartha Lakes Police Service responded to an apartment on Kent Street for a report of an altercation between two males. When officers arrived on the scene they learned that the resident of the apartment had woken up to find an intruder inside his apartment. Police say there was an altercation and the intruder received serious life-threatening injuries as a result of that altercation.
Many residents were confused how the person they viewed as the “victim” in this case could be charged for defending himself.
Section 34 of the Criminal Code of Canada allows a person to use force to protect themselves, others, or property if they reasonably believe it’s necessary to stop an attack and the force used is reasonable in the circumstances.
Alex McLeod, of the Riley Firm, is not involved with this case. But he has a criminal law background and finds that a lot of the conversation surrounding this incident comes from a misunderstanding of what self-defence is – probably due to television influence, which is often U.S.-based.
“We don’t have the same castle laws that they have in the United States, where the basic rights to defend and self-defence are in some states almost limitless,” he tells Kawartha Lakes Weekly.
In Canada, self-defence comes with the idea of reasonable force which is what the average person would do in the same circumstance.
That didn’t stop Ontario Premier Doug Ford from weighing in on the issue, even though he had no further details, either.
“I know someone breaks into my house, or someone else’s, you’re going to fight for your life,” Ford said during a press conference. “You’re going to use any force you possibly can, to protect your family. I’m telling you; I know everyone would.”
McLeod said that comments like these aren’t helpful, especially in a case where very few details are known.
“He wasn’t one of the arresting officers. He’s not the Crown attorney and he’s not the individual’s defence lawyer,” McLeod said.
However, Ford’s sentiments have been echoed by many in the community, with the police being criticized by the public for laying these charges.
The blowback was sufficient enough that within 48 hours KLPS Chief Kirk Robertson issued a special statement after the incident, as the police officers involved in the arrest started to receive criticism for their actions.
“The role of the police is to investigate impartially and present findings to the justice system, which ultimately determines the outcome,” his statement reads. “It is important to remember that charges are not conviction; they are part of the judicial process, which ensures that all facts are considered fairly in court,” Robertson stated.
McLeod said it is the job of police to “determine whether or not they deemed the use of force or the use of defence reasonable.”
“In this case they didn’t,” the local lawyer said. He says the police have a lot of different things to consider when deciding whether to lay charges or not, such as was there a rational fear of safety. Even with charges laid, “that’s not to say the Crown wouldn’t ultimately come to a different conclusion.”
The intruder was already wanted for un-related offences and was charged with possession of a weapon for a dangerous purpose; break, enter and theft; mischief under $5,000; failure to comply with probation.
No further details of the incident have been released at press time, but McLeod says ultimately that once charges have been laid it’s out of police hands. “It’s the (job of police) to collect the evidence to convince the Crown that they have a sufficient case. It’s the Crown attorney’s job to take that evidence and determine whether or not that case can lead to a conviction,” McLeod said.
While conversations about this incident will inevitably continue McLeod said that without knowing all the details it is very difficult to speculate on if the use of force was reasonable in this case or not. “We don’t know whether it was the right or incorrect decision.”
Ultimately, the question of whether the force used was reasonable under Canadian law will be decided not by public sentiment, but by the courts.
If I walked in to the police station with a crossbow , at anytime of the day or night, and aimed the weapon at the police officers, let’s all guess how they would react. I think it would be safe to guess that the cops would use deadly force to defend themselves. Now , does any reasonable person think there’d be any charges laid on the cops afterward ? We all know the answer.
Indeed Canadians do have a right to self defence – “but that defence must be reasonable”. The lie being told to Canadians, is that homeowners are NOT being treated like criminals when they defend themselves. In fact, they 100% are being treated exactly the way criminals are treated. Both by police, and by Crown prosecutors. Both are actively looking for “evidence” to support criminal charges against the homeowner (or the “defender”) as they “investigate”. And they aren’t looking to give the homeowner or defender any kind of a “break”. It is their job. I believe that more education for police investigators and Crown prosecutors is necessary regarding these types of incidents and situations (home invasions, carjackings, street muggings/assaults, sexual assaults, etc.), because the use of force by victims and would-be victims is unique. It’s as unique as police use of force events, perhaps more so.
Critically important – if you ever have to defend yourself, and the police show up, do NOT provide any kind of statement – other than: “I am too traumatized to talk with you right now”. Even though you may know that you acted properly given the dangerousness, the ambiguity, the unpredictability, the fear, etc., do not provide any statement without consulting a lawyer (police officers do exactly the same thing when they are involved in a serious use of force event).
Understand that you are entitled to defend yourself and your family in Canada. Sections 27 & 34 of the Criminal Code authorize self defence (use of force). At the same time this legislation uses ambiguous terminology like “as much force as is reasonably necessary”, “reasonable force”, and “no more force than is necessary”. The problem is the inherent ambiguity with this terminology. The word “reasonable” is like the word “blue”. It means something different to everyone. We all have a general sense of blue – but the problem with “reasonable” is “reasonable to whom”? And under what circumstances? Someone said it means: “what the average person would do in the same circumstance”. And who can possibly accurately evaluate that, unless they lived it!? The “average person” doesn’t have a clue what they’d do in “the same circumstance”! Even the police in Canada are not required to “measure force with precision”, or “exactitude”, or “to a nicety”, nor are they held to a “standard of perfection”. Certainly a terrified homeowner, without that kind of training, knowledge, experience and use of force response options, cannot possibly be held to a standard even close to this!? Unfortunately, this reality seems absent from the evaluation/ investigation aspects of these traumatic situations.
Practical advice from a use of force expert:
1. If put in the situation of threat from an uninvited person or persons, defend yourself and your family – by any means necessary. That might mean walking away – but, despite what the uninitiated will say, this is often not possible. You may have to defend with bodily force, with legally-possessed weapons (i.e., licensed firearms that you have the ability to access, bear spray, etc.), with any “option of opportunity” (i.e., a chair, a rock, a baseball bat, a fire extinguisher, a shovel, a kitchen knife, etc.). Circumstances will almost always dictate what your options are.
2. When the situation is no longer threatening, assess, then de-escalate and call for assistance – police and emergency medical – your call will be recorded. To be clear, this means that the predator is no longer any kind of threat – they may have fled (DO NOT chase after them!); they may be unconscious (if they are, restrain their hands and feet – and make sure that no one else is with them); they may be severely injured (again, restrain them as necessary); etc.
3. Protect yourself legally when “help” arrives. Physiologically and psychologically, you will be in no condition to provide any kind of accurate or useful statement – DO NOT! Do not answer any questions. You will not be certain. Your responses will be used AGAINST you. They will try to force you to answer questions with trickery and veiled threats. Again, do not. Be polite, but understand you will be in no condition to provide accurate information. Police officers involved in critical use of force incidents follow this protocol.
4. Take the time to restore calmness within yourself, and to regain your memory of the traumatic event (ideally 48-72 hours). Then, consult legal counsel BEFORE saying ANYTHING to investigators. Again, police officers involved in critical use of force incidents follow this protocol.
It’s one thing to be victimized by a criminal, do not allow a system of “justice” to victimize you a second time!
Understand that once Canada’s “justice system” is invoked upon you, it is punitive, regardless of whether you acted lawfully and reasonably. If charged, you will need a lawyer. This costs money – a lot of money. You will be fingerprinted. A record of being charged will be registered. You will be named. Your reputation will be impacted. You will lose time due to the process. You will likely lose sleep. It will be extremely stressful. Even if you “win”. However, it is a “choiceless choice” – you must protect yourself, your family, your friends – OR you will live (or die) with the choice of not defending, when defence was necessary (because the outcome is ALAWYS unknown).
This is intended as practical advice, and does NOT constitute “legal advice”.
Reasonable force is a grey area, we don’t know intruders intent. People who need help to break in or bring weapons. It’s the price an intruder is willing to pay. Injured or killed. Victims should not have to defend their reactions when their not the criminal