HOME INVASION: Was shooting retreating invaders in the back legal?

This is an extremely interesting case which was heard by a court of appeal in Canada. It raises the issue of just how far a home owner can go to defend himself from home invaders. On the surface of this case, it would appear that perhaps the home owner went too far. But did he really go too far when he shot the retreating home invaders in their backs while they were trying to escape from his property? I found this case recently which is R. v. Chris Bishop in which the decision was reached in 2013.  

 

This incident took place in Cambridge Bay that is a town of about 1500 people on Victoria Island in Canada’s Arctic, lying 1,300 miles due north of Regina. It is in Nunavut that is the largest, northernmost and newest territory of Canada. It was separated officially from the Northwest Territories on April 1, 1999.

Chris Bishop was peacefully occupying his small one-door home in Cambridge Bay. About 3:00 a.m. one January night, he phoned the R.C.M.P. to say that some men were trying to break down his door. He then said they seemed to be leaving. He phoned the police again a few minutes later to say that the men were back with more people, and were breaking down his door, and he was alone and unarmed. He asked the police to come immediately. The police could hear shouts and thumping on the phone taking place in the background. But despite that, no police came. Bishop was now on his own.

Escape or retreat was neither physically possible since they were at his front door and his only door. By the way, escaping was legally required on his part since every homeowner has a right to protect his home.

The front door was not holding against the invaders’ battering, so Bishop retreated to his bedroom and locked its door. He legally owned and possessed a rifle. He had a magazine holding more rounds than was legal.

The lead invader had in his hand a samurai sword, and another had a broken golf club. One eyewitness mentioned a crow bar. It is conceded that the invaders’ aim was to injure Bishop seriously. Obviously a samurai sword can easily kill, especially without prompt experienced surgical intervention.

Once the invaders broke down his bedroom door, only then did Bishop fire his rifle. He hit at least two of the invaders. DNA evidence showed that one invader spilled his blood inside the bedroom, and another spilled his blood very near the bedroom. These two invaders ran from the house and were later found dead near Bishop’s small house.

The undisputed evidence of the Crown’s forensic firearms expert made it almost certain that the four shots fired from the bedroom were fired after the bedroom door was forced open. No shot went through the door, nor through the bedroom wall which means that Bishop waited until he was sure that his life was at risk. That decision was a mitigating factor in his favour.                     

The first two invaders were clearly shot in the very act of entering into the bedroom through the final door which they had broken down, armed with dangerous weapons, intending to injure the homeowner, as part of a larger group. The case for self-defence there was a very strong defense for Bishop and the onus was on the Crown to disprove self-defence beyond a reasonable doubt. It is difficult to see how a conviction of the homeowner for the crime of murder could be arrived at under those circumstances if that is all that occurred.

Twenty-five expended casings were found, of which 13 were found ‘outside’ the house. But that may include some on the porch. That implies that 12 were found inside the house.

Shots were fired in and from the house, and it seems probable that most hit one or more invaders. Only a few shots seem not to have hit any of them. However, some shots were fired post-mortem (after they died) and so that evidence is irrelevant since a person cannot be charged with murdering a dead man.

Unfortunately, analysis of bullets and bullet marks tells very little about where the invaders were when they were hit, and still less what the invaders were doing at that precise time. Forensic evidence showed one shot fired in the bedroom hit two invaders. There is no way to know whether any later wounds came from the same bullet.

Three other invaders were wounded, one of whom died about 44 meters from the house. The other two invaders survived, each receiving but a single wound. A bullet went harmlessly through the coat of one.

At some point, the invaders appeared to begin to retreat, and Bishop fired more rounds. The evidence does not make it at all clear when a retreat occurred or when the retreat was evident to Bishop. Some shots were fired during the retreat, and some during the invasion, but no one really knows how many fell into each category. There also is strong evidence indicating that a different invader had been seriously wounded in the interior hallway by the accused’s bedroom.

The neighbors saw Bishop come out on his porch and fire shots at or near some fleeing invaders. One invader died in the doorway of the house. The invader who died soon after at a distance of 44 meters from the house was on the ground and evidently already seriously wounded when Bishop fired at or near him.

The shootings when the men were fleeing from the house raises the issue as to whether or not he was justified at shooting the fleeing men and especially the man who was lying on the ground while he was wounded.

The Crown (prosecutor) charged Bishop with three counts of second degree murder, and two of attempted murder. An Iqaluit jury convicted Bishop on all five counts. The trial judge imposed a 16-year ineligibility for parole sentence, longer than the crown had suggested.

Let me say from the get go, the judge at Bishop’s trial was a bumbling fool. Bishop had been tried by a judicial baboon as far as I am concerned. His knowledge of the law with respect to self defence had much to be desired. Unfortunately in Canada, judges are appointed to sit until they are 75 therefore they cannot be voted out of office like they are in the U.S.A.

The Crown’s witness, Ms. Brenda Ohokak, took the stand and testified that she was a neighbor of Bishop. She testified both about the home invasion, and also about an earlier conversation they had together. She said that some days before the invasion, while they were at a social drinking gathering, their conversation was about his state of mind, and his dislikes and intentions. She testified saying;

“He handed me a photo album and he said, Look at this, like he was proud to have a photo album. I looked at the pictures and there was pictures of him holding a big gun and he had some gear like army gear and something to cover his face and Desiree Pangnatuk who was there with me, she saw the pictures too and she was asking some questions like, aren’t you scared to use it? Are you scared to use it? And he said, no, I’m not. He said that he shot a few people before when he was living in Yellowknife, but I wasn’t sure if he was telling the truth or not. And then he was talking about an argument that went on earlier that night. He said he got into an argument with a couple guys. He said that he gave Duma a black eye and that Duma gave him the bruise on his cheek. And then he said Dean and Duma, going to pay. Going to pay for what they did to me.”         

The lawyer for Bishop initially objected that such evidence should be brought before the jury. The judge didn’t agree with him and permitted the evidence to be heard by the jury. This is where the baboon judge made a terrible blunder that invariably resulted in the Court of Appeal ordering a new trial for Bishop.

The reasons why courts have often excluded similar fact or bad-character evidence against a defendant is because such evidence often amounts to have a prejudicial effect or create danger that outweighs any permissible probative value.

In other words, the defendant’s past indiscretions may cause the jurors to overlook the fact that in the current case before them, the defendant may actually be innocent. For example, no one suggested that the supposed former shootings in Yellowknife by Bishop were of, or directed at, anyone connected with any person in the present invasion or its setting. The five invaders did not live in or anywhere near Yellowknife. They are unrelated to the supposed former shootings. To include the Yellowknife shootings with the current ones in Cambridge Bay would unfairly do irreparable damage to Bishop’s defence. That is because the jurors might improperly form the opinion that if he wrongly shot people in Yellowknife, then he wrongly shot the home invaders in Cambridge Bay. 

Crown counsel finally conceded to the appeal court that this evidence about the supposed shootings in Yellowknife should not have been admitted at Bishop‘s  trial. Two of the arguments made by the Crown at various times more or less contradict each other. One was that the ‘previous shooting’ evidence was relevant and admissible in order to make realistic Bishop’s pre-invasion statements to Ms. Ohokak about his dislike of some of the future invaders. The other is that this evidence was brief, trivial, and was ignored by everyone because it was mere bravado or hot air, to which no one would pay any attention nor give any credence.

There is and was a total absence of evidence or argument to show how the evidence of supposed previous shootings in Yellowknife could be admissible here. It is not similar, let alone strikingly similar. Suggesting that it negatives the defendant such as self-defence does not bypass the modern Canadian rules for admissibility.

It wouldn`t matter if the prosecuting counsel thought that the so-called shooting and the threat of getting even was pure bravado. Once the jury heard it, the damage was done. Even if the judge told the jurors to disregard the evidence of Bishop`s neighbour about the so-called shootings and the threats, I hardly think the jurors could put what they heard out of their minds. It`s like telling someone on the street who sees a pink elephant walking down the street and tells that person to ignore what he saw and put it completely out of his mind.

It is long-settled law that the Crown prosecutor cannot ordinarily lead evidence of past misconduct by the defendant on other occasions, nor of his general bad character such as bad temper, violence, or dishonesty.

There is an exception to this settled law however. If the defendant is in the witness box testifying that he didn’t steal money from his employer to which he currently is on trial for, and he tells the court that he has always been an honest person and the prosecutor has evidence that the defendant stole money from a former employer and was convicted of that crime, he can bring that fact to the juror’s attention.

Defence counsel had filed a formal motion to the trial judge. He asked the judge to bring in evidence that all three of the invaders who later died had a history of burglary, violent crimes, and even home invasions. The defendant motion was argued at this stage, during the same hearing without the jury being present. Finally the trial judge refused to allow such defendant evidence to be given about the past crimes of the three dead home invaders. In such a case, evidence of the previous violent character of the person killed or wounded is legally admissible. The authorities do not bar such evidence of past behavior where there is already before the court evidence of violence in the event being litigated. Indeed, some courts have insisted that when there was current violence; evidence of previous violence is a sort of extension of the present evidence of violence.  It is very rare that courts will exclude the defendant evidence as being unfair or as having more prejudicial effect than probative value. (probative evidence is evidence tending to prove facts presented in court to the detriment of the accused)

                              

Despite the fact the trial judge let the jury hear and act on statement of Bishop’s neighbour alleging previous serious criminal conduct by Bishop against unrelated people, this stupid judge kept from the jury detailed analogous evidence of similar previous crimes by the home invaders who were the subject of the present events. Needless to say, the court of appeal wasn’t happy with that kind of conduct on the part of that judge.

Legal rules exclude character evidence in most criminal cases. But it has been recognized for over a century that it is extremely unfair for one side to lead character evidence against the other side, with no chance for rebuttal.

Bishop’s appeal against conviction was allowed, and all five convictions were set aside. Bishop sought only a new trial. The court ordered that there would be a new trial. The sentence appeal became academic.

The question about whether Bishop will be convicted of murder for shooting the retreating home invaders will be decided in his new trial. Meanwhile I will give you my opinion as to what I believe will be the outcome of that trial.

The Canadian Criminal Code defines defendant of self-defence. The mental elements all are about knowledge and assessment of forces and facts outside the accused, notably dangerousness (the intent and capabilities) of the attackers (in this case, the invaders), about the possibilities of escape and about how much force was reasonable. If self-defence applies, or there is reasonable doubt whether it does, the accused must be acquitted. When he fired at the invaders in his bedroom, he was quite right to use deadly force to repel his invaders.

If any later shooting was done after the danger ended, that does not remove self-defence justification for earlier shots while the danger still existed. However,  the jurors might well couple the idea that Bishop is a habitual killer with his firing toward or at the fleeing invaders.

Of the 25 bullets fired by the appellant, ten entered Costa’s body, five went into Komaksiut’s body, three into Atatahak’s body and three more wounded Pigalik and Bernhardt. All three deceased were shot in the back; although not all shots were in the back. All three deceased were shot while running away. And both the victims who were wounded were also shot while running away.

Based on the evidence of four spent shell casings found there, the appellant fired only four of the 25 shots from inside his bedroom. Only one of those penetrated a human body or bodies. That is, the bullets which were fired from the bedroom were recovered by the ballistics expert and only one had the characteristics of having entered a human body or bodies before becoming lodged in a wall or couch.

Furthermore, spent shell casings suggest that Bishop fired at least two shots in the hallway of his house, fairly close to his bedroom. Any person then fired at had to be then still in the house. Two more expended shells were in the entryway, suggesting firing while again still in the house.

The evidence indicated that after the first four shots fired from the bedroom, the appellant missed hitting a person with a bullet only once with the next 21 shots. There was also the evidence that all those who had entered the appellant’s residence exited it after the initial shots were fired. All died outside. According to the coroner, the two fatal wounds that killed Costa came from bullets which entered his back and exited his chest. The wound which killed Atatahak was from a bullet which entered his right front chest. The evidence does not disclose when that fatal shot was fired but Atatahak was shot at least once, and likely twice, while outside trying to flee. In other words, the shooting made medical treatment of any prior wound which Atatahak received impossible. At least one of the bullets which killed Komaksiut entered his back and exited his chest. An eye witness testified that Komaksiut was shot while running away and after he had fallen in the snow from a previous gunshot wound. When he struggled to get up, the appellant aimed and fired again. The bullet found its mark. Komaksiut fell dead. Atatahak and Komaksiut were both shot when they were a considerable distance from the appellant’s residence. Atatahak’s body was found 9.6 metres from the appellant’s front door and Komaksiut’s body 42 metres from the front door.

The third death was the invader who got 44 meters from the house before he died, and at whom Bishop was seen to shoot, when he was out on the street. If a juror were inclined to treat the shootings here (of all five invaders) as one monolithic block, then any question of excessive or unnecessary force when the invaders were later fleeing would likely coalesce in that juror’s mind with initial bad motive or initial bad character, and inclination or habit to shoot too readily.

The invader who died 44 meters from the house sustained many wounds. Two were serious. Some were post-mortem and so legally irrelevant to the murder charge. Others were not serious wounds. There may well be doubt as to when and where his fatal wounds were sustained. He was likely already dying when some later shots were fired. For example, one of the two fatal wounds was to his leg. Obviously that would not kill at once, and presumably would kill through later blood loss. And the order of his wounds is unclear. The evidence about blood stains from this man is not at all clear, and in particular does not state where the trail of blood started.

An eyewitness to the shootings outside the house said that invader was shot or shot at while lying on the ground. That strongly suggests that he had incurred a serious wound earlier. Clearly he wanted to leave, and was trying unsuccessfully to get up from the ground outside of the house. He was on the ground because he was already wounded earlier. He could well have been fatally wounded inside Bishop’s house. If that is so, then any further shots at him while he was on the ground outside the house became superfluous and for this reason, being shot when he was outside the house didn’t really bring about his death.  

The trial judge’s charge to Bishop’s jury implied that the deceased in question was shot only on the street, or that he incurred the fatal shot then. But there is no evidence of either, and there was strong evidence to the contrary. A new jury would be told that by the trial judge and if so, Bishop would be acquitted of murdering the invader while he was on the street.

The charge to the jury by the baboon judge encouraged them to draw inferences against Bishop from the fact that some bullet wounds (not all) were from back to front, supposedly implying shooting of someone fleeing. One dead invader had no wound from behind; the fatal wound was from the front. One invader only injured had a grazing wound from the front. Its direction cannot be told. Several of the wounds from the back were to extremities, or were by bullets which also went through the torso laterally, not back to front.

There is no reason to conclude that back wounds had to be incurred outside the house. Careful review of the evidence shows that five empty shell casings’ locations were never described, and there is reason to think they were inside the house.

The Crown’s theory was that the four minutes between Bishop’s two fruitless phone calls to the R.C.M.P. for help, reduced provocation by giving him time to cool off. I hardly think that was sufficient time to cool off. Later the jury was recharged on manslaughter (at the jury’s request). The trial judge told the jury that provocation had to be in the heat of the moment before passion cooled. That was virtually the last thing which the jury heard orally from anyone about the subject of loss of control. It would be very unlikely if Bishop was indeed a habitual and willing killer, as Ms. Ohokak’s inadmissible evidence suggested if he lost control of himself during this incident.

Certainly going out onto the porch and shooting at retreating invaders went beyond self-defence, but that by itself does not address the very different elements of provocation. Self-defence is a rational action; but provocation is a semi-defence for irrational emotional ones. It is quite arguable that provocation alone would prevent the third death from being anything greater than manslaughter.

There is no doubt in my mind that when Bishop fired his gun at the five men while they were retreating, he was not in immediate danger. The further targeted shootings were not necessary because the deceased were unarmed, were fleeing and one or two of them may have already been wounded. Now it might be argued that in the bigger picture this was a war that was not going to end until one or the other had been killed or incapacitated. But in civil society, generally such shootings are not tolerated. Self-defence does not  permits one to pre-emptively kill or injure one’s enemies. The question that raises its ugly head is—did he have the right to do this?

I remember reading about a case in British Columbia many years ago where a man followed two other men with the sole purpose of killing them. When they survived, they decided to kill him right then and there before he tried to kill them again at a later date. They killed him on the spot. The court ruled that they were justified in killing the man who tried to kill them because had they not done so, he may very well have killed them at a later date. Unfortunately, I couldn’t find the case in my research of this article.

A similar situation occurred later and finally ended up in the Supreme Court of Canada. The outcome of that appeal answers the question I have just raised in a previous paragraph.

The appellant (the woman who shot her husband in his head while he was asleep) was constantly being beaten by her abusive husband and she felt that perhaps next time, she will be beaten to death.

By the way, even if she got a court order prohibiting her husband from being within 500 yards from her home, that is no guarantee that he won’t come into her home and murder her. I don’t know why she didn’t move out to escape his wrath. But even if she did, if he found her, he could still kill her.  

I share the view expressed by the author, Willoughby in his Rendering Each Woman Her Due:  Can a Battered Woman Claim Self-Defense When She Kills Her Sleeping Batterer published in the Kansas Law Review—that society gains nothing, except perhaps the additional risk that the battered woman will herself be killed, because she must wait until her abusive husband instigates another battering episode before she can justifiably act by killing him first, before he kills her, perhaps even when she is asleep.  

The trial judge in the battered woman case said in part;

“If, after hearing the evidence (including the expert testimony), the jury is satisfied that the accused had a reasonable apprehension of death or grievous bodily harm and felt incapable of escape, it must ask itself what the "reasonable person" would do in such a situation.  The situation of the battered woman as described by Dr. Shane strikes me as somewhat analogous to that of a hostage.  If the captor tells her that he will kill her in three day’s time, is it potentially reasonable for her to seize an opportunity presented on the first day to kill the captor or must she wait until he makes the attempt on the third day?  I think the question the jury must ask itself is whether, given the history, circumstances and perceptions of the appellant, her belief that she could not preserve herself from being killed by Rust (her threatening husband) that night except by killing him first was reasonable.  To the extent that expert evidence can assist the jury in making that determination, I would find such testimony to be both relevant and necessary.” unquote

In the wife battering case, the court of appeal acquitted her for the reasons I presented above. I would think that the same thing will happen to Bishop at his second trial. Of course, one can never be sure of the outcome of jury trials.

Ultimately, it is up to the jury to decide whether, if in fact Bishop’s perceptions and actions were reasonable.  Expert evidence does not and cannot usurp that function of the jury.  The jury is not compelled to accept the opinions proffered by the expert about the effects of being threatened on the mental state of victims generally or on the mental state of Bishop in particular.  But fairness and the integrity of the trial process demand that the jury have the opportunity to hear them.

Here is a question one has to seriously ponder.

Does it not follow that Bishop could justifiably shoot to death home invaders who escaped from his home whom he honestly believed would on another day kill him either at his home while he is asleep or even while he is walking to his home?

The obvious question is if the violence was so intolerable, why did the woman not leave her abuser long ago? One might argue that she could have left her home and moved somewhere else. But then again, he might track her down and kill her at a later date. Could Bishop do the same and move away? More importantly, would he be obligated to do so?