Self defence: the process is the punishment
By Joan Janzen
A defense attorney told his client, “I have good news and bad news. The bad news is the blood test came back, and your DNA is an exact match with that found at the crime scene. The good news is your cholesterol is down to 140.”
Last month an Ontario homeowner received bad news. He was charged with second degree murder after multiple suspects entered his home, intending to commit a robbery. Andrew Lawton from True North recalled the incident, which occurred in the home where the man and his mother reside.
One of the four thieves who entered the home was armed, and was confronted by the homeowner who had a registered firearm. Now the homeowner has been charged with second degree murder, and one of the persons who broke in the home is facing charges of break and enter and unauthorized possession of a firearm.
The client’s lawyer provided a statement to CP24.com saying his client fired one shot at an intruder who broke into his home and attacked his mother. He said his client’s intentions were not to kill the intruder.
A news release by regional police, which was reported by the Toronto Star, said two suspects went into the home and fired several shots inside. Officers found one of the suspects dead.
Lawton observed that there have been a number of cases in Canada where people who used their registered firearms in self defence, which is legal, still faced charges. And even when they were exonerated from the charges, the process took years.
The process involves losing their firearms, their firearms licence, and having to spend a huge amount of money on legal fees. “In some cases they are tested more seriously than the criminals,” Lawton noted.
Lawyer Sam Goldstein told Lawton he sees many cases when someone is acquitted, but it’s difficult to get their firearms back. “You have to go through all kinds of applications, courts and so on to try and get your firearms back, when in the end you did nothing wrong. In the 25 years I practiced as a lawyer, I’m constantly coming against the problem with how to get my client’s firearms back after they’ve been acquitted from their charges. So it’s an ongoing issue.”
Lawton recalled interviewing a gentleman while he was making a documentary about firearms. “Someone was rummaging around his truck in the middle of the night. He took his firearms out, shot a round on the ground. It ricocheted and hit one of the assailants, and he was charged,” Lawton reported, adding that the man was eventually exonerated.
Goldstein responded to Lawton, saying, “I think it makes some sense for the police to say - we’re going to charge you, and we’re going to let the process determine what’s the reasonable circumstances.” But as Lawton observed, in many cases “the process is the punishment”.
Sections 34 and 35 of the Criminal Code say someone is not guilty of an offence if they respond to force or threat of force against them or a person they’re protecting, or repel someone entering without permission or threatening their property. The defensive act must be “reasonable in the circumstances”.
Finally, the Crown will have to prove “beyond a reasonable doubt” that the person was not acting in self defence when they used the force. Getting to that point is part of the very long process.
An Ontario lawyer, Edward Burlew, said in a February 21st National Post article, self-defence is a universal human right, but how it’s interpreted and what it means for the defender is inconsistent. “While some police and prosecutors are sympathetic when, for instance, a homeowner uses a gun to ward off attackers, others can take a harder line,” he said.
In a February 22nd article in the Globe and Mail, Michael Spratt, a criminal defence lawyer, said someone breaking into your house doesn’t necessarily give you the right to apply force, and certainly not lethal force.
The article lists strict parameters that define how and when Canadians are allowed to defend themselves, someone else or their property, without facing time behind bars. This includes reasonable fear of imminent death or grievous bodily harm from somebody else.
In a February 23rd Global News article, lawyer Solomon Friedman advised Canadians who find themselves needing to use self defence to follow a basic rule: that your actions need to be reasonable and proportionate to the threat.
Meanwhile an observation in a February 23rd National Post article made a valid point: nobody has time to turn to the criminal code and review it before they act in self defence.
In the end there’s good news and bad news. The good news is it’s very possible an accused homeowner will eventually be exonerated. The bad news is - the process is long and costly.