Monday, 19 September 2011

What can you do when confronted with a burglar?

There are very few things that will frighten a very strong and brave man but being woken up to the sound of someone prowling in someone’s home at night is real scary and will send shivers up and down the spine of the bravest of the brave. The reason for this is that you are probably still in bed, unclothed with nothing near you to protect you and your loved ones from what may be approaching you unseen.

It has happened many times with disastrous results to both the homeowners and their families and sometimes also to the invaders who are inside the home.

Early Sunday morning (September 11th 2011) on a residential street in Arnprior, Ontario, a father and his son awoke to the sounds of a man attempting to force himself into their home. When police arrived, the father and son were fine, but 41-year-old Corey Blaskie lay stabbed to death on the ground. According to the police who arrived on the scene, the burglar was killed in the midst of a confrontation.

In 1964 when I was an investigator for Ontario Legal Aid, I was asked to investigate a murder where a woman was allegedly attempting to open a second story flat kitchen window at 3:00 in the morning. She was confronted by the home owner who during the confrontation at the window, he choked her to death. He dragged her body into his living room and tried to revive her and then he called the police. They jumped to the conclusion that he raped her and then strangled her. He told them that she was a prostitute friend and that he made arrangements for her to enter the flat via the kitchen because the buzzer to the front door downstairs wasn’t working. They didn’t believe him and subsequently they charged him with capital murder. (a hanging offence then) Damn fools! They should have done what I did. I checked for her fingerprints on the rear metal stairway leading to the shed she was standing on and her prints were there. Further, I found a witness (out of a city of 2 million) who just happened to be in the alley taking a pee that night and remembered hearing the confrontation at the window.

The charge was dropped to manslaughter because although he previously told her to come into the flat that way, by the time she arrived, he was so drunk, he forgot about the previous arrangements he and the dead woman had agreed upon. He was sentenced to five years in prison.

Back to Arnprior again. Police would not say whether Mr. Blaskie was armed, but how many people had been involved in the final scuffle and the other residents had been injured because the intruder was armed? Investigators have not ruled out the possibility that charges could be laid against the home's residents. (father and son)

This kind of scenario is becoming familiar in Canada, that is; a homeowner faces possible charges for his actions after confronting an alleged criminal. Well, I should not use the word ‘alleged’ since anyone who enters a home at night uninvited or even attempts to enter a home uninvited at night is hardly what one could call an ‘alleged criminal’ since he or she is an outright criminal.

Gordon Dykstra, a criminal defence attorney in Abbotsford, British Columbia said it quite correctly when he said, "You have to have proportional force to the force that you're facing, and that is the difficult concept. If this was Louisiana, you could take your .45 (handgun) and just blast away." unquote

And you would get away with shooting the burglar who broke into your house at night if you’re were a homeowner in the State of Louisiana. I suppose the authorities in that state and others I might add; believe that there is nothing like being shot with a .45 calibre handgun when you are confronted by the homeowner of the home you just broke into at night that will deter you from doing it again—that is if you survive the first shooting.

Of course, shooting people who you think is on or in your property illegally isn’t always the right thing to do. For example, in 1992, Yoshihero Hattori, a 16-year-old Japanese exchange student living in Batton Rouge, Louisiana, was looking for a Halloween party in the Baton Rouge suburbs when he mistakenly knocked on the wrong front door of a home owned by 31-year-old Rodney Peairs on the night of October 17th 1992. Mr. Peairs was in his garage and when he emerged from the garage with a 44-magnum handgun with a laser scope and saw the kid as he was walking away from the house. He shot the kid dead.

Now you may rightly ask, “Why didn’t he simply yell to the kid “FREEZE and put your hands up where I can see them.”

According to this homeowner while he was testifying at his trial for manslaughter, the young victim was acting in a menacing, "aggressive" fashion, like a stranger invading someone's home turf.” Give me a break! I am forced to ask this rhetorical question, “Has he ever seen a stranger invading someone’s home turf in the past who was acting in a menacing aggressive manner before?”

Well, keep in mind, folks, this happened in Louisiana where it is second nature to shoot first and then ask the questions of the dead man after the smoke is blown away by the wind immediately after the victim was blown away.

“Now yal all hea this. You gonna get shot if ya come onto ma property, yah hea?”

That was the attitude of the jury that heard the evidence and then acquitted the 31-year-old shooter.

The Japanese nation was so upset at the decision of the jury, I doubt that it would have taken much prompting of its leaders to instruct its armed forces to fly bombers over Batton Rouge and bomb the hell out of that city.

Years ago, one of the American southeastern states passed a law that stated that if anyone breaks into a home after dark and he is arrested and convicted of that crime, he can be sentenced to death. I don’t think that law exists today.

Now, let’s return to the stabbing at Arnprior. Neighbours say the home where the burglar was attempting to enter and subsequently stabbed is occupied by a former military officer, his wife and their two teenaged children.

Their home borders an industrial area and well-used bike path, and it had apparently become a prime target for local burglars, with multiple break-ins last summer. The homeowner had installed an alarm system and lights on the side of his home and garage as a precaution, a neighbour said.

A neighbour who didn't want to be identified said, "I think he was pushed too far, you know? It wasn't going to happen again."

Sometimes people cross over other people’s yards as a shortcut and that can be upsetting but that isn’t what happened in this particular case. The night of his death, Mr. Blaskie had told Jennifer Prince, his girlfriend of two years that he was heading out for a bike ride.

"It was nothing unusual for Corey to bike at nighttime," said Ms. Prince. "He enjoyed the tranquillity of being able to bike around the town for an hour when he couldn't sleep." There is nothing wrong with doing that. If that was all he was doing, he would be alive today. Biking around town at night is not the same as attempting to enter someone’s home at night.

What kind of man was Mr. Blaskie? Photos of him are in an online book of memories showing him as a fit, stocky man with ‘sleeves’ of tattoos on his arms. He shared a home with Ms. Prince and her two girls, aged 13 and 18, from previous relationships. Mr. Blaskie was looking for work at the time of his death, and was supported by Ms. Prince's work at Home Hardware and for a local construction company.

In 1999, a Corey Blaskie, who was born in 1969, was sentenced to 23 months in jail after leading police on a ‘ridiculous’ high speed chase through Ottawa-area back roads. He was ultimately cornered at a dead end by seven police cruisers and was arrested after fleeing to a nearby barn. Police later found a switchblade in his pocket.

The man's defence was that he had been sitting in his car when, unprovoked, a police officer began beating him with a flashlight, forcing him to escape at high speed. A judge ruled that Mr. Blaskie's account was not an "accurate fact."

There was no history of him recorded that he ever broke into other people’s homes but he was, in my opinion, not exactly the kind of man you would want living next to you and prowling around your neighbourhood at night.

I don’t know at this particular moment as to whether the homeowner was in serious danger when he confronted Mr. Blaskie but someone trying to enter your home at night should be thought of as a dangerous intruder.

In cases of self-defence, particularly ones that happen inside the home, suspects may be initially charged, but they usually have a good chance of avoiding prosecution—particularly if they face a jury trial.

Lawrence Manzer of Burton, New Brunswick, was charged in 2010 with firearms offences after confronting intruders on his neighbour's property with an unloaded shotgun, although the charges were later thrown out on a technicality. I am not sure he would be guilty of anything unless he had an unregistered firearm in his possession.
In May, Joseph Singleton, 46, a farmer in Taber, Alberta had his charges—assault with a weapon and assault causing bodily harm, after he wounded a man with the blunt end of a hatchet who had just burgled his house—referred to an alternative measures program as ordered by the court.

In 2008, Albertan Dan Olineck fended off his Calgary area farmhouse from two home invaders with a knife, killing one in the process. Crown prosecutors decided not to press charges against Mr. Olineck after determining he had acted in self-defence.

When someone is under attack in their own home, fleeing the premises is never a requirement, the Ontario Court of Appeal has affirmed.

In its decision last week, the court ordered a new trial for Cedric Forde, a career criminal who, in 2006, stabbed rival Clive McNabb after spotting him at the door of his bed-room. Mr. Forde was convicted of manslaughter for the killing in 2007.

According to an appeal court decision released on September 14th, the trial judge incorrectly told the jury to consider whether Mr. Forde could have "extricated" himself from the confrontation with Mr. McNabb.

"In my view ... 'retreat' was not a proper factor for the jury to consider," said appeal Court Judge J.A. LaForme.

The ruling - coming only days after an Eastern Ontario father and son apparently confronted a 41-year-old who was attempting to break into their home, and as Ontario Provincial Police ponder whether to lay charges in the alleged burglar's death—confirms Canadian homeowners can take violent steps to protect their home.

In most cases, claiming self defence after a violent encounter can be difficult when it could have been possible for the assailant to simply run away. If the intruder is in the home, however, courts have declared the rules are different.

"The law is clear that flight from one's own home is not a reasonable option for self-preservation, and that the defence of self-defence will still apply even if there is another way out of the house," reads a 1998 decision by the British Columbia Court of Appeals. Even then, homeowners are expected to exercise a "reasonable" amount of force when dealing with home intruders.

In 2006, police investigated Burlington, Ontario venture capitalist Don Shaxon after he tackled a drunken 16year-old who had entered his home. "You see someone who doesn't belong, they come at you, your wife is three to five feet behind you, instinct takes over," said Mr. Shaxon at the time.

Most recently, in August, a Toronto man was charged with aggravated assault for repeatedly stabbing an intruder he found hiding in his girlfriend's mother's house.

In the case of Mr. Forde, he was facing a known rival. Both men had long criminal histories, and had fought before. "McNabb had a propensity for violence against the appellant and was the aggressor in the fatal confrontation between them," the appeal court decision reads. When Mr. McNabb stormed into Mr. Forde's bedroom, he was belligerent and looking to collect a debt from one of Mr. Forde's tenants. "I've been stabbed before by this man; I've been attacked by this man. I'm not taking that chance of running out and he falling on top of me," Mr. Forde said at trial.

When self-defence cases proceed to trial, juries are often quite sympathetic to homeowners, or even shop owners, who may have used excessive force against an intruder. In 1991, François Guerin opened fire on two robbers as they ran away from his wife's Montreal convenience store, killing one and wounding the other. Police charged Mr. Guerin with criminal negligence causing death and criminal negligence causing injury, but he was acquitted by a sympathetic jury.

In the United States, 31 states are under ‘a man’s home is his own castle doctrine’ laws. Unlike Canada, where proportional force must be used against an intruder, many ‘castle doctrine’ laws allow deadly force to be used against any kind of potentially violent trespasser.

In 1999, Martin, a bachelor, was living alone at his farmhouse in Emneth Hungate, Norfolk, nicknamed Bleak House, which he inherited at age 35 from his uncle. He claimed to have been burgled a total of ten times, losing £6,000 worth of furniture. Martin also complained about police inaction over the burglaries. The police reports state that multiple items and furniture were stolen such as dinnerware and a grandfather clock

On the night of 20 August 1999, two burglars – Brendon Fearon, 29, and Fred Barras 16 – broke into Martin's house. When confronted, they attempted to flee through a window. Shooting downwards in the dark, with a pump-action Winchester shotgun he owned illegally, Martin shot towards the intruders. Fearon was hit in the leg and Barras in the back. Barras escaped through the window but died at the scene.

On the 10th of January 2000, Fearon and Darren Bark, 33 (who had acted as the getaway driver), both from Newark-on-Trent, Nottinghamshire, admitted to conspiring to burgle Martin's farmhouse. Fearon was sentenced to three years in prison, and Bark to 30 months (with an additional 12 months arising from previous offences). Fearon was released on the 10th of August 2001. Fred Barras, the dead youth, had accumulated a lengthy criminal record, having been arrested 29 times by the time of his death at the age of 16, and had been sentenced to two months in a young offenders' institution for assaulting a policeman, theft and being drunk and disorderly. On the night he was killed, the teenager had just been released on bail after being accused of stealing garden furniture. Barras' grandmother, Mary Dolan, stated, "It's not fair that the farmer has got all that money and he is the one that took Fred away." Obviously the woman didn’t care what her grandson did with his life and how it had a bad effect on her neighbours.

On 23 August 1999, Martin was charged with the murder of Barras, the attempted murder of Fearon, "wounding with intent to cause injury" to Fearon, and "possessing a firearm with intent to endanger life".

English law permits one person to kill another in self defence only if the person defending him or herself uses no more than "reasonable force"; it is the responsibility of the jury to determine whether or not an unreasonable amount of force was used. The jury at Martin’s trial were told that they had the option of returning a verdict of manslaughter rather than murder, if they thought that Martin "did not intend to kill or cause serious bodily harm". However, the jurors found Martin guilty of murder by a 10 to 2 majority.

He was sentenced to life in prison, the mandatory sentence for murder under English law. Nick Makin, Martin's solicitor, said; "It is appalling that the family of someone who has a criminal record for burglary and assault should attempt to claim any damages of criminal injury when he was shot while burgling the dwelling of an innocent person... It is also appalling that they may get legal aid while his victim is in prison and patently unable to work and equally cannot get legal aid. There is something wrong and perverse with our legal system that it permits this.” unquote

An appeal was considered in October 2001 by three senior judges headed by Lord Woolf, LCJ. Submissions by the defence that Martin had fired in his own defence were rejected by the appeal court. On this occasion the defence also submitted evidence that Martin suffered paranoid personality disorder specifically directed at anyone intruding into his home. This submission was accepted by the Court of Appeal and, on the grounds of diminished responsibility, Martin's murder conviction was replaced by manslaughter carrying a five year sentence, and his ten year sentence for wounding Fearon was reduced to three years. These sentences were to run concurrently.

Martin was imprisoned in Highpoint Prison, Suffolk. When he became eligible for parole and early release in January 2003, the Parole Board rejected his application without stating a reason. The chairman of the parole board, Sir David Hatch, in an interview with The Times described Martin as "a very dangerous man" who may still believe his action had been right.

Martin challenged the decision in the High Court, where the parole board's decision was upheld. Probation officers on Martin's cases said there was an "unacceptable risk" that Martin might again react with excessive force if other would-be burglars intruded on his Norfolk farm. On the 28th of July 2003, Martin was released after serving three years of his five-year sentence, the maximum period for which he could be held following good behaviour.

In October 2003, The Daily Mirror paid Martin £125,000 for an exclusive interview on his release from prison. After investigation, the Press Complaints Commission ruled that the payment was justified and in the public interest because Martin "had a unique insight into an issue of great public concern"

Irish homeowners can now legally use guns to defend themselves if their homes are attacked under new legislation that was passed in July 2010.The new home defense bill has moved the balance of rights back to the house owner if his home is broken into "where it should always have been", say top Irish police.

The police association of superintendents and inspectors stated that “the current situation, which legally demands a house owner retreat from an intruder, was intolerable".

The new bill was published by Justice Minister Dermot Ahern. Under the bill homeowners will be allowed to use "reasonable" force against intruders to defend themselves, others or their property. This includes lethal force, depending on the circumstances of course.

Justice Minister Dermot Ahern stated that house owners could use guns in self-defense, especially if the intruders were armed but said it would ultimately be a matter for the courts to resolve.

The bill also clarifies that a house owner will not be required to retreat from an intruder and that intruders injured as a result of reasonable force won’t be able to sue the house owner.

"The bill is welcomed because it aims to clarify the entitlements of a homeowner when faced with the situation where an uninvited intruder has entered the home,"

AGSI vice-president Dan Hanley told the Irish Examiner.

"The bill aims to shift the balance of rights back to the homeowner where it should always have been. It is intolerable a homeowner should be compelled to retreat in front of an intruder who has entered the home and who may have malign intentions towards the homeowner, the family or the home owner’s property."

Hanley added; "It is ridiculous to suggest the bill, which attempts to redress a serious legal imbalance, would provide a license to kill or a ‘have-a-go’ charter for homeowners, the vast majority of whom will continue to act with good sense and in a peaceful way." unquote

Minister Ahern also dismissed the suggestion the bill was a "license to kill". He stated it merely allowed for lethal force provided it was justifiable.

Rural Link, the national network of community groups in rural Ireland welcomed the bill, saying it was "sensible legislation giving much needed clarity to homeowners on their rights when confronted by intruders".

The Irish Council for Civil Liberties however, stated it would inspect the bill to establish that it was "human-rights compliant".

The need for new legislation became evident after an intruder, John Ward, was shot dead while on the land and dwelling area of Mayo farmer, Pádraig Nally. He was convicted of manslaughter, but his conviction was later overturned after a public outcry.

Burglaries in Ireland increased from 23,600 in 2007 to 26,800 in 2009. Violent burglaries rose from 255 to 363 in the same period.

If you kill a home invader and walk up to him and put one in the head for good measure it’s not going to look very good for you in our court system or any court system for that matter. Also, let’s say you shot the person seven times and he’s down on the ground not moving, however he’s alive and breathing. At this point he’s no longer a threat to you so you can stand there with your gun on him until the police arrive. Firing another bullet into him for good measure will not get you any sympathy from the court. What sympathy you might get if any would not be unlike that which a dog gets when it inadvertently walks into a flea convention.

In a self-defense shooting it makes no difference whether the guy lives or dies. What matters is that you can fire off as many rounds as you feel are needed to stop that person from killing you or others in your home.

Years ago, a man came home and found his wife on the floor being raped by a stranger. The husband grabbed a lamp off the table and struck the rapist several times on his head until he was no longer a threat to his wife. The man died. It didn’t matter how many times he struck the man on the head as long as the man was still on top of his wife. When the husband was satisfied that the rapist was no longer a threat, he stopped beating the man with the lamp. Of course, by then, it was academic.

Killing a mere thief is excessive and probably doesn't warrant the death of the criminal, just as shooting a fleeing intruder doesn't warrant his death either.

Therefore, is shooting a home intruder who is retreating and leaving the home to be considered self defense or just mean spirited revenge? I think it is the latter. I cannot see any justification of shooting a home intruder who is fleeing from the home unless of course he had caused serous injury to someone in the home. Then shooting the home intruder should be for the purpose of preventing him from fleeing. If you don’t shoot him to stop him from fleeing, how will you feel if on another day, he returns to a neighbour’s home and while in that home, he kills your neighbour? When I refer to shooting him, I am not suggesting that you shoot him in the back of his head. Shooting him at his legs would be more appropriate and justifiable.

However, the specific circumstances of individual situations are often too difficult to assess so assessing the specific situation itself, taking into accounts the facts of the situation, and making a final tentative judgment from them may be a more ideal way of solving the problem. In other words, perhaps it's better to let the courts and lawmakers decide on the ethics of self defense in certain kinds of cases.

I say this because some cases of self defence shootings or stabbings or whatever, the justifications of those acts have really been quite borderline and I am not convinced that simply because the home invader was a thief who was trying to steal something from the home, his death should be the final consequences of his act especially if it appears to the homeowner that when he was being killed, he was no longer a threat to the home owner or his family.

Fear, which is the primary factor in self-defense, erases almost all the logic of calculation of how much force to exert to counter an attack or invasion. That is why the benefit of the doubt is available to the person trying to defend himself. Most of us are untrained when it comes to this situation. Having said that; let me ask this rhetorical question. “Where is the fine line that distinguishes justification from revenge?”

There is no doubt in my mind that the home invader who with others attacked a home in Toronto and had his eyes poked out by the residents in the home while they were in a fierce fight with the home invaders, lost his eyes out of sheer revenge. Incidentally, the residents in the home were not charged with blinding the home invader.

The way I see it, I may be forced defend myself and my family if someone breaks into my home, especially at night. I would use the least amount of force (if any) necessary to protect me and my family lest I become the aggressor (assuming such aggression runs contrary to my interests). Besides, getting into a violent confrontation with a home intruder can backfire and he can end up having the edge over me and that could be a serious consequence for both me and my family.

Attacking the home intruder is secondary because the primary question I must ask myself is whether my defense will be effective, specially is such a defence might require disproportionate force. Effective defence means restoring my safety and that of my family and deterring future attacks against us during that moment, is paramount in my mind, providing that the defence I use to bring us into the realm of safety does not exceed the costs of achieving it.

On September 15th 2011, I received a phone call, from a reporter from the National Post, a large Canadian newspaper. He said he was doing a follow-up on the story written the day before where the man trying to break into a home was stabbed to death. The reporter asked me for my thoughts on the issue of using force to deter illegal home intrusions. I gave him my views and in his article which was published the next day, he wrote in part;

"You're expected to be absolutely safe in your home. You may not expect to be safe in a gas station or a store, but in your home, that's something that's a given," says Dahn Batchelor, a Mississauga, Ontario based criminologist. "If someone breaks into your home, it seems to me that he does so at his own risk." unquote

It appears that quite a few home intruders took that risk and it cost them their lives. Will their deaths deter future home intruders? I strongly suspect that there are unborn home intruders waiting for their turns to attempt to break into homes after they are born and later become older and like those home intruders who died in the home intrusions before them, they will be added to the pile of corpses of foolish dead criminals who didn’t realize or even care that a person’s home is sacrosanct and inviolate and should remain so at all times.

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