A Dual-Class System: Self-Defence

Every week, Ontarians hear about another home break-in where the homeowner is left powerless to defend themselves, their family, and their property. If these homeowners are good victims, passive and harmless, then they are met with the usual political outcries and public sympathies. In circumstances where the homeowner is not a good victim and fights back, they inevitably risk being charged themselves. Meanwhile, the offenders who break into homes are often released on bail shortly after.

It is said that laws are a reflection of a society’s values. What, then, does it say about our society when someone who wakes in the night to defend their home is the one treated as the criminal?

Take a recent case: an Ontario man awoke to find an armed intruder in his apartment in the middle of the night. In the altercation that followed, the man supposedly attacked the home intruder with a knife. The intruder was injured. The result? The homeowner was charged with aggravated assault and assault with a weapon.[1] How did this happen?

Unlike the United States of America, Canada does not have “castle laws,” which permit broad defensive action against intruders. Instead, our system relies on the doctrine of a reasonable right to defend yourself. Under the Criminal Code, courts must analyze a host of factors: the nature of the threat, the extent to which the force was imminent, the person’s role in the incident, the use of a weapon, the size and strength of the parties, and the proportionality of the response, among other factors. While this right may seem reasonable in theory, in practice, it is unreasonable for someone who was sleeping in their own home to calculate proportionality. It is unfair to expect a person who did not seek out crime to endure the mental and financial stress of determining what was or was not a reasonable response to a threat at that time. Yet, this is precisely what such a law entails, preferring people to be the perfect victims instead.

Meanwhile, the offenders are often met with leniency. Due to the Canadian Charter of Rights and Freedoms, there is a presumption of release unless the Crown can show cause as to why the offender should not be released. This may explain why so many repeat offenders are released on bail and then arrested again in an endless cycle.  

These policies result in a dual-class system that no longer seems “just” to your average law-abiding citizen. Instead, academics and policymakers with overly abstract humanitarian ideals about criminal justice reform create laws that end up punishing law-abiding citizens. Out of an overabundance of concern for the safety of the criminals, these law-abiding citizens are charged for self-defence. Not only does this erode public confidence, but it emboldens criminals to perpetrate further crimes since they are met with virtual impunity. Despite overwhelming public support for those who fight back against intruders, these policies continue to side with the offender. The values reflected in these laws are not those of ordinary Ontarians, but the values of those who think they know better for everyone and do not have any skin in the game.  

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[1] See: https://www.cbc.ca/news/canada/toronto/lindsay-home-intruder-knife-defence-1.7614690