Those who defend themselves from violent attacks are too often treated as wrongdoers

Over the past few years, Canadian police have had some trouble telling victims of crime and criminals apart. This is because self-defence is treated less like a right in this country and more like a wishy-washy theory subject to the emotional, moral and even political leanings of law enforcement.

The bottom line: if you ever need to defend yourself, you’d better hope police find you a sympathetic character, aren’t offended by your choice of weapon and believe the unfortunate truth that, sometimes, violence is justified.

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“(Self-defence) has been dealt with on a very uneven basis,” Ontario lawyer Edward Burlew, who specializes in firearms-related cases, recently told a National Post reporter. “It has been primarily driven by the individual opinions and emotions of police and prosecutors.”

Recently, two men were killed in Halifax home invasions in as many weeks. Burlew’s comments came after a case where an alleged intruder was stabbed to death. In a separate incident, one of three intruders was shot and killed. The episodes raise fresh questions about what constitutes self-defence in Canada — a matter that’s never truly been resolved and is governed by laws Burlew calls “imprecise.”

While police ultimately decided against laying charges in the above cases, that’s not always how such incidents end. Those who defend themselves from violent attacks are too often treated as wrongdoers, subject to arrest, prosecution and potentially life-altering judgments, as well as criminal records.

The episodes raise fresh questions

In 2017, three home invaders in Porters Lake, N.S., knocked out the homeowner and tied up his friend. The man who had been tied up, face down on the floor, managed to get his hands on the intruders’ shotgun, which he used to chase them out of the house and to shoot at their truck. One of his attackers was hit by birdshot in the upper leg. Meanwhile, the homeowner, who had regained consciousness, grabbed a rifle he kept illegally in the house and also went out to shoot at the truck. The same man who had been hit by birdshot was struck by a bullet in the back.

The homeowner, who was originally charged with attempted murder, pleaded guilty to careless use and unauthorized possession of a firearm and received a one-year conditional sentence.

His friend was initially charged with recklessly discharging a firearm and careless use and pointing a firearm. He lived under this legal cloud for a year and a half, turning down a plea deal that would have spared him prison time, but left him with a criminal record and most likely banned from entering the United States, before the charges were finally dropped.

In 2019, a Manitoba man was convicted of manslaughter and sentenced to five years in prison after he stabbed to death an intruder who broke into his home and attacked him with a knife.

These are extreme and rare examples of the problem with Canada’s self-defence laws — much more common is the legal jeopardy many women face every day. Last spring, CBC News asked a Facebook group dedicated to women’s safety whether any of its members regularly arm themselves for protection. Two-thirds of respondents said they do.

It’s an understandable measure, given law enforcement’s inability to prevent violence against women inside or outside the home. In the Greater Toronto Area alone, recent months saw a woman riding public transit stabbed to death by a stranger, another woman randomly set on fire and killed, a woman shot execution-style in a gas station parking lot, and yet another attacked by a man who attempted to put a bag over her head. These are just the most violent attacks that make headlines, and don’t include the hundreds of sexual assaults Canadian cities see each year.

Yet the items women regularly carry “just in case,” like small knives, pepper spray or keychains fashioned as potential weapons, are often illegal. Possessing them alone exposes women to potential charges, let alone the legal consequences of actually using them, even in self-defence.

When it comes to domestic violence, which spiked during the pandemic, women are also too often charged for attempting to protect themselves. This is exacerbated by “mandatory charging” laws for domestic abuse incidents that can see police either misidentify the aggressor or charge both aggressor and victim.

The right to defend oneself is fundamental and should be covered by clear laws not subject to the whims of law enforcement and prosecutors. Victims should not be further traumatized by the justice system, or have their lives derailed because of their instinctive response to an act of violence against them.

It’s time to reform the Criminal Code to ensure we no longer blame the victims.

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