Does a home owner have the right to shoot robbers?

Ian Thomson moved to a rural homestead in Southern Ontario to lead a quiet life investing in a little fixer-upper. Then his neighbour's chickens began showing up on his property. He warned his neighbour who ignored his warning so he then later killed one of the chickens that wandered onto his property.

The incident began six years of trouble for Thomson that culminated early one Sunday morning last August when the 53-year-old former mobile-crane operator woke up to the sound of three masked men firebombing his Port Colborne home.

Thomson, a former firearms instructor, immediately grabbed one of his Smith & Wesson revolvers from his safe, loaded it and headed outside dressed in only his underwear.
He exited his house and fired his revolver two, maybe three times. Then the firebombing culprits ran off.

His surveillance cameras caught the attackers lobbing at least six Molotov cocktails at his house and bombing his doghouse, singeing one of his Siberian Huskies. But when Mr. Thomson handed the video footage to the Niagara Regional Police, they charged him with careless use of a firearm.

The local Crown attorney's office later added a charge of pointing a firearm, along with two counts of careless storage of a firearm. The Crown even suggested that Thomson if convicted, should be sent to jail.

Thompson’s collection of seven guns, five pistols and two rifles were seized, along with his firearms licence.

Thomson meanwhile lives in fear that his attackers will return and has taken to arming himself with merely a fire extinguisher.

"I don't have enemies," said the soft-spoken man, who now studies environmental geosciences full-time at Brock University after being injured in a workplace accident. "I don't know that many people. I'm a quiet man. I just want to go back to my life and be able to live out my days in relative peace." Thomson said he has added extra security to his home after the firebombing and hardly sleeps anymore. The charges, he said, have destroyed him. He raised two interesting points when he said rhetorically, “People need to know that this is what can happen to you, and which side of the victim line do you want to stand on; lying down dead or in court.”

He feels that his home is his castle and that he should be able to do whatever it takes to protect himself, and his loved ones from an intruder. That seems reasonable on the surface. The question that will invariably be asked at his trial is; “How far can one go to protect his home and family?”

Thomson's situation is the latest in a series of high-profile cases in which people have been charged after defending their homes and businesses against criminals.

For example, central Alberta farmer Brian Knight became a local hero after shooting a thief who was trying to steal his ATV. He pleaded guilty to criminal negligence earlier this month.

In October 2009, Toronto shopkeeper David Chen was acquitted of forcible confinement charges after he tied up a repeat shoplifter and demanded he stop raiding his grocery store.

Their cases are renewing calls for Canada to introduce a version of the ‘Castle Doctrine’ found in many U.S. states, which allows citizens to defend their property with force.

In Canada and elsewhere, your home is your castle but is it a qualified castle? Are there limits as to what you can do to protect your castle from an invasion?

Canada allows people to claim self-defence for using force, including guns, to protect their life as long as the force is reasonable and they believe they have no other options.

Some people---some of them being police officers, some being Crown attorneys, some being ordinary people say that they don't want vigilantism, to which I can only give an emphatic 'Pardon me?' Vigilantism talks about vengeance and retribution.When you're under attack, it's not a vigilante act.

Thomson’s kind of response to an attack on his property is about saving his life and that of his family and also saving his property. I'm sure that will be recognized at Thomson’s trial, but if is so obvious that what he was doing was protecting himself, his family, his dogs and his property during a continued attack, why should he be put to the expense of a trial? That prospect would appear on the surface as being horribly wrong.

"If the public are wondering can you run out of your house and fire a handgun at an intruder, the bottom line is, according to the laws of Canada, no, you can't," said Constable Nilan Dave of the Niagara Regional Police Service. “In so doing, you actually can find yourself on the wrong side of the law.”

Mr. Burlew, a Toronto-area lawyer whose practice mainly consists of firearms-related charges, said he is trying to hire a psychiatrist to prove that Mr. Thomson feared for his life when he grabbed his revolver. A target shooter and hunting-safety instructor, Thomson had the skill to shoot his attackers if he'd wanted to, Mr. Burlew said, but missed on purpose. In other words, he was simply trying to scare the intruders away. Certainly if the intruders were aware that he had a firearm, they may be discouraged from returning at a later date to do harm to him, his family, dogs and his property.

Police said no one was injured in the shooting and the attackers got into a car and sped off. They did learn who the intruders were and charged Randy Weaver, 48, of Port Colborne, and Justin Lee, 19, of Welland, with arson in December, alleging the men and an uknown third suspect ‘intentionally set the home on fire while the homeowner was inside.’

Mr. Thomson's neighbour, who had received a suspended sentence for uttering threats against Mr. Thomson in 2007, has not been charged in connection with the attack on his Thomson’s house.

This is an issue that many Calgarians have been asking themselves after two men broke into a Langdon-area home in the middle of the night last Thursday. According to the RCMP, a man and woman were sleeping in bed when the intruders entered the home. A fight ensued; when it was all over, one assailant was seriously injured, the other dead. By Friday, RCMP still wouldn't rule out a murder charge against the man who fought off his attackers who were two men he apparently knew, nor would they reveal the cause of death.

"The Criminal Code authorizes people to use as much force as necessary to protect themselves and their property," said RCMP Cpl. Patty Neely. He added, "However, that force must be the minimum amount necessary."

It seems that there are times when you can’t necessarily temper the manner of the assault when you are defending yourself. There are two Canadian cases in which this issue was raised.

One of them involved a dentist raising his hand at another motorist after they both left their vehicles and were facing each other. The other driver struck first and broke the jaw of the dentist. The court ruled that the other driver had the right to defend himself and that breaking the dentist’s jaw wasn’t done by using excessive force.

The other case involved a man who was ordered out of another man’s house. When the man refused and began approaching the homeowner with both fists raised, the latter picked up a board and struck the other man’s legs and broke one of them. The court ruled that the homeowner had the right to use reasonable force to defend himself and under the circumstances the homeowner found himself in, his breaking of the leg of the other man was not done with excessive force.

Although the particular circumstances of the Thomson case are still unfolding, it's a tragedy that shines a discomfiting light on an often misunderstood and highly emotional area of criminal law: the concept of self-defence.

"For hundreds of years, the law said that your home was your castle," says Chris Levy, associate dean of law at the University of Calgary. "The courts gradually moved away from that but people still have a very emotional attachment to what was essentially a medieval law."

“Current Criminal Code provisions covering self-defence,” says Levy, “exist to ensure that reasonable force in protecting oneself is adhered to."To put it bluntly, you're not entitled to go ape if someone breaks into your home.”

Yet the combination of the self-defence argument, a position that engenders a ‘could have been me’ reaction among many with the terrifying spectre of a home invasion makes for one potent cocktail. “As a result,” says Levy, “police and prosecutors are often loath to pursue such charges. That’s because it’s a very tough one to prosecute.”

I will give you five examples of where excessive force was used in Canada. The first one involved a gun-toting robber robbing a gas station in Toronto. As he was fleeing with the cash, the attendant reached for a rifle under the counter and shot the fleeing robber in the back. The robber later died in the hospital. The second case involved a robber who held up a bakery. The owner of the bakery shot the robber as he was fleeing, nearly killing him. The third case involved two break and enter thieves who were teenagers. As they were seen by a neighbour exiting from his neighbour’s house with stolen goods, he shot both of them with a shotgun and wounded them. The fourth case involved a savage home invasion. Some family members got a hold of one of the home invaders and during the fight, the home invader’s eyes were gouged out of his head. The fifth case involved a police officer who entered a house to hassle the owner of the house to which he had a personal grudge. The people in the house threw the cop out of the house and the cop’s head struck the something hard when he landed on the ground and died.

In the first four cases, no charges were laid and in the fifth charge, the court ruled that the police officer had no right to be in the house and as such was a trespasser and the people in the house had the right to evict him in the manner they did because he was resisting their attempts to evict him from the house.

Quite frankly, if someone was in my house attempting to do me or my family harm, I would take the necessary steps to stop him. And you can be sure that I would not be treating him with kid gloves. Most people live in a home. Jurors know what the law is, but they can decide at the end of the arguments in trial that, 'Damn it, it's my right to kill someone who breaks into my home.” Even judges have been known to reveal such a heartfelt attachment to the sanctity of one's home.

In 1997, a judge who acquitted an Ottawa man of murder after he shot an intruder several times invoked the old ‘home is your castle’ common law, saying the accused "acted reasonably in these circumstances."

One doesn't need to face off intruders in his own home to invoke similar empathy when pleading self-defence.Twenty years ago, Calgary drug store owner Steven Kesler shot a robber as he was fleeing the scene; a jury later acquitted him of murder.
Kesler became something of a folk hero. His story made worldwide headlines and a TV movie was made about the famous case.

Like Levy, Sanjeev Anand defends the restrictions put on self-defence in Canadian law. “I'm not sure people would approve of a black-and-white law that if someone breaks into your home, you can have cart blanche to kill them,” says Anand, a University of Alberta law professor and co-author of the book Principles of Criminal Law. But he also agrees that the combination of emotionality and the greyness of what constitutes reasonableness often make for one hard-to-stick charge. He added, “Self-defence is incredibly confusing in criminal law. The use of excessive force has to be pretty blatant.”

When someone shows up in your bedroom in the middle of the night, it's reasonable to think you might be in great danger. It’s also reasonable for you to take steps to protect yourself and your family and if that means the use of deadly force, then so be it.

Anand said, “I can kill someone if I believe that person is going to kill me.” as he referred the ‘reasonable apprehension’ clause of self-defence when the victim causes the death of their attacker. He added, “I could be mistaken, but as long as my mistake is reasonable, I can use self-defence.”

Unfortunately the laws of self-defence in Canada are unduly technical and unduly complex. It’s almost as if you need a lawyer beside you advising you as to what steps you should undertake when you are confronted with an intruder you believe is going to harm you or your family.

Do you think that you should have the right to batter to death a burglar in your house? What if he's wielding a blood-filled syringe that you suspect is contaminated by the HIV virus, and he has his other hand on the door that leads to the room where your two small children are sleeping?

The current law in Canada appears to imply that a householder should retreat from an intruder in the home rather than fight him. Many people are outraged by that requirement and point to incidents like the tragic case of Paddy Barry, grandfather of the entertainer Keith Barry, who was dangerously ill in hospital after being beaten by a burglar in his own home. He may very well have been feisty enough to take on that burglar, were it not for the law.

There should be parliamentary discussions about removing the requirement for the householder to retreat from a burglar and that would deny a burglar the right to sue the householder for any injuries received while on the premises. In other words, if the burglar makes a run for it and falls down the stairs, he can't sue for damages for his broken leg. At present, he is perfectly entitled to. Under my suggestion, even if the householder pushed him down the stairs and he broke his leg, he still wouldn't be able to sue, which I believe most people would see as entirely right and proper.

I am not sure if I would have the intestinal fortitude to swing a poker at an intruder who presumably would be capable of returning any violence with interest. However recently there was a woman in her 80s who confronted a burglar on the stairs at three in the morning and repeatedly swung a golf club at him, berating him in stentorian tones as “a young guttersnipe who should be ashamed of himself for terrorizing an old woman”. He fled, howling, “Ah missus, ah missus!” Then she poured herself a congratulatory sherry. She's now 97, and still in good health. But she wasn't within her rights, as she has a shrewd aim and connected with several vicious swipes (more power to her). Under my proposal, she'd have been within her rights.

A lot of people wouldn't have that kind of courage, at least on their own behalf. Protecting children is another matter. I think if I felt that a small child was under threat thanks to the invasion of my or any other household by a burglar, I would be capable of using violence. And if a child was actually in danger, for instance being physically threatened by a burglar, I imagine I would probably see red, and be more than capable of inflicting severe injury. Courage would have nothing to do with it: it would be animal instinct to protect the young. I wouldn't start thinking rationally about ‘reasonable force’. And I suspect that I might continue hitting the intruder in a blind rage until I was satisfied that he was no longer a danger to me or my family.

If blind, protective rage takes over and you injure an intruder so badly that he later dies from his injuries, have you the right to walk free? I don't think so, not if you've been determined to hurt him, and are not worried whether or not you kill him. Because that's manslaughter, and should be treated as such, even though one would hope that the courts would impose the lightest possible sentence for that crime in such circumstances. But if you kept hitting him until he no longer was a threat to you or your family, then in my opinion, such action would be reasonable.

In the US, where many householders keep guns for ‘personal protection’, the culture is to shoot first, and shoot to kill. And the law in some States protects you if you kill an intruder. The theory is that you should kill rather than injure the intruder, because if he merely goes to jail, then he'll come after you when he's released. It's logical, but brutally cold and unnerving. But then, America has an ingrained gun culture which we in Canada still, thank heaven, don't have here. In Arizona, everyone over the age of 18 who doesn’t have a criminal record and has not been classed as mentally unstable can carry a concealed handgun on his person.

There was an interesting case in British Columbia years ago that bears retelling. A man threatened to kill two other men and an attempt was made by him when he shot a gun in their direction. He was acquitted over a legal technicality. Her told the two men that next time, he wouldn’t miss. They waited for him in the dark and shot him to death. Both men were charged with murder but both men were acquitted since it was obvious to the jury that had they not killed the man, he would have surely killed them.

Of course, the courts here have interpreted the current laws very loosely in some cases. Padraig Nally, the elderly farmer who lived in terror after many months of intimidation by the violent John 'Frog' Ward, a member of the travelling community, shot Mr Ward, who had come into his yard looking for him.

When Ward left, Nally, who had been suffering from severe depression for a long time, followed him into the public lane and shot him in the back. He was sentenced to prison for manslaughter, but was acquitted on retrial. He had not ‘retreated’ from the intruder as the current law requires; in fact, he deliberately followed him out of his premises. But he was set free. The reason was obvious. Had he not killed Ward, he would have been killed by Ward on another day.

The majority of citizens are in a healthy state of mind and do not live in permanent terror. If they have the right to protect themselves and their families within their own homes, they are unlikely to abuse that right. Knocking an intruder armed with a knife down the stairs, for instance, if he approaches a child's room, or reaching for something to knock him out with a crack on the head, could hardly be considered unreasonable force.

And there are a lot of people who are inclined to violence at the best of times (think of road rage). Telling them that they can be as violent as they like inside the walls of their own homes, even against an intruder, is imposing a vast change in a culture which is already far too ready to accept violence as a means of resolving issues.

Let's keep our pokers for the fire, and not regard them as a potentially handy weapon however, if your life and the lives of your family are in peril, well, use your best judgment. If the poker is at arm’s reach and the use of it will save you and your family from harm, then use it.

Professor Fridman in The Law of Torts in Canada, discusses self defence in the context of a civil action.

“Self defence imports the idea that the defendant is under attack at the hands of the plaintiff, or reasonably believes that he will be subject to such an attack, even if the plaintiff has neither the intention nor the power to make such an attack. Even if the circumstances entitle the defendant to claim he was acting in self defence, he cannot escape liability unless he discharges the burden of proving that the amount of force he used was reasonable in all the circumstances. This will depend on the court's assessment of the situation, taking into account the form and nature of the plaintiffs attack on the defendant and the reasonableness of the response of the defendant.” unquote

The test that someone who assaults an intruder who has been sued because of the assault has to meet at trial is set out in Mann v. Balabass, 1969 CanLII 5 (S.C.C.), [1970] S.C.R. 74:

“In an action for assault, it has been, in my view, established that it is for the plaintiff to prove that he was assaulted and that he sustained an injury thereby. The onus is upon the plaintiff to establish those facts before the jury. Then it is upon the defendant to establish the defence, firstly, that the assault was justified and, secondly, that the assault even if justified was not made with any unreasonable force and on those issues the onus is on the defence.”

It follows that in Thomson’s case, the test he has to meet at his trial is that with respect to the use of a firearm, it has been, in my view, established that it is for the crown to prove that the person’s who damaged Thomson’s property was unnecessarily assaulted with unreasonable force and that he sustained an injury thereby. The onus is upon the crown to establish those facts before the jury. Then it is upon the defendant (Thomson) to establish his defence, firstly, that the firing of his handgun was justified and, secondly, that the firing of his handgun even if was justified, was not made with any unreasonable force and on those issues the onus is on the defence.

Linda D. Rinaldi, editor., Remedies in Tort published by Carswell, 1987) vol. 1 at 2-30 to 2-31 with respect to self defence;

“The law gives every one the right to defend himself against either threatened or an actual attack from another. The right of self-defence proceeds from and is limited by the necessity to ward off the danger of such an attack. Therefore the right of self-defence commences when the necessity for such defence begins and it terminates when the necessity for such self-defence comes to an end. The law, however, requires that the force used in defending oneself must not be out of proportion to the severity of the attack. An attack by fists may be answered by fists but not with deadly weapons such as knives and guns. In exercising the right of self-defence one must use only such force as on reasonable grounds the person attacked believes to be necessary for his own defence. In short, self-defence means defence, not counter-attack.”

“Self-defence is usually pleaded as a defence to a battery action where the defendant has struck the plaintiff in response to an attack or perceived attack by the plaintiff. It is a complete defence. If the defendant reasonably perceives an attack to be imminent, he may still be entitled to rely on self-defence although he has struck the first blow. However, force may only be used to repel or prevent an attack, not to punish an aggressor for past actions or as a guise for a counter-attack.”

“In preventing or repelling an attack, no more than reasonable force may be used. What is reasonable depends on the facts and circumstances of the case, including the nature and seriousness of the attack or threatened attack, the relative size and strength of the combatants, and whether the acts complained of took place after the threat was averted. The seriousness of the resulting injury is not necessarily indicative of the use of unreasonable force, as even acts which cause serious injury may be justified as self- defence: “it has long been held that an attacked person defending himself and confronted with a provoking situation is not held down to measure with exactitude or nicety the weight or power of his blows.” Where a person uses more than reasonable force, he himself may be liable for battery.” unquote

In Thomson’s case, the threat had already passed. If he shot the intruders, one could argue that he did it out of revenge even if he aimed his gun at them and missed. But Thomson states that he didn’t intend to shoot them but rather his intention was to scare them sufficiently enough so that they wouldn’t return to his property again to do damage to his property or do harm to him.

Applying those considerations relating to the prohibition against the use of any more than reasonable force in repelling or preventing an attack, I believe that in considering the circumstances, Thomson did not use more than reasonable force in responding to the attack against his property nor did he use his firearm improperly.