The Ontario Superior Court in Toronto. The idea that self-defence should be subject to a test of reasonableness has existed in the Criminal Code since it was first adopted, in 1892.Christopher Katsarov/The Canadian Press
After a Lindsay, Ont., man was charged with aggravated assault for allegedly knifing an intruder in his apartment – the alleged intruder was hospitalized with life-threatening injuries – the Premier of Ontario was quick to vent his outrage.
“You should be able to protect your family when someone’s going in there to harm your family and your kids,” Doug Ford fumed at a press conference last week. Others hastened to follow. “If someone breaks in, you deserve the right to defend your loved ones and your property – full stop,” federal Conservative Leader Pierre Poilievre tweeted.
The particulars of this case are murky, but horrifying. The intruder is reported to have been wielding a crossbow, to have had accomplices, and to have attacked the householder. But none of this has been tested in court. Whether police were right to charge the householder, or the intruder, must wait until all of the evidence has been heard.
But the public outrage the case has aroused seems less about how the police applied the law than the law itself. Or at least the law as people imagine it to be.
Some appear to believe that the law forbids any use of force in self-defence. Not so: the law requires only that the use of force be “reasonable in the circumstances.”
For others this is no improvement. You come across an intruder in your house in the middle of the night. You’re startled, confused, and badly frightened. How on Earth can you be expected to coolly appraise the precise level of force that is “reasonable” in response?
Opinion: Break into my home at your own risk
The good news is: you aren’t. The law doesn’t say your actions have to be “reasonable” – only “reasonable in the circumstances.” Juries are instructed to make allowance for the situation you found yourself in. The question is: how would a reasonable person who was in the same situation be expected to act?
The accused, moreover, is not obliged to prove he was acting reasonably. The most you are obliged to establish is that there is some minimal “air of reality” to your story. From then on the onus is on the Crown to prove that you were acting unreasonably.
This idea, that the use of force, even in self-defence, even in your own home, should be subject to some basic test of reasonableness, is not new. Neither is the objection, that the reasonableness test should make allowance for circumstances. Both have been shaped by centuries of common law precedent.
The relevant Criminal Code provisions, it is true, were added in 2012 – by the Harper Conservatives, as it happens. But the Code has included similar language since it was first adopted, in 1892. So the popular notion that this is some newfangled Liberal invention is simply untrue. Even in the good old days, you couldn’t just fire at will.
Nor is this idea peculiar to Canada. The criminal law of virtually every advanced democracy contains similar language. Some, such as Japan’s, set a higher bar of necessity and proportionality; others, such as Germany’s or Italy’s, allow more latitude, especially for householders. But none give the defender carte blanche.
Yet that is what a great many people appear to desire. As in Mr. Poilievre’s “full stop” tweet, their objection is not of the “where do you draw the line” variety. Rather, it is opposed to the whole idea that there should be any limits on a householder’s right to take whatever actions he deems necessary to repel an intruder.
A moment’s thought should suggest how indefensible this is. Clearly there are situations where you would be justified in using force, even deadly force. But: you come across a burglar, unarmed, who immediately runs out the door. Are you really going to argue it should be legal to shoot him in the back?
Still, shouldn’t the presumption be in the householder’s favour? Couldn’t we adopt some version of the “castle” doctrine, found in many U.S. state laws, where the householder is presumed to have had a reasonable basis for using force, merely by virtue of the intruder having entered his home?
But how different is that from our system, really? Even in “castle” states, it remains open to the state to rebut the presumption, where the use of force is manifestly unreasonable.
Which is pretty much how our system works. The difference is more of degree than kind. True, the accused in Canada has to raise the defence of reasonableness, rather than it being automatically assumed. But once that initial “air of reality” hurdle has been cleared, the burden is squarely on the prosecution – just as it is in the U.S.
I hate to spoil a really great populist uprising. But if the argument is “the law is an ass,” the evidence shows it is disconcertingly un-asinine.