The Great Gun Control Debate- 2.0

[Eaglelord17]

The title of that article is preposterous to me.

The fact the home invader was armed as well (charged with possession of a weapon for a dangerous purpose) blows my mind that the home owner was charged. There has to be something else going on there such as the home invader running away and getting shot from behind or something, otherwise I can't understand why they would charge the home owner.

 

[brihard]

The fact the home invader was armed as well (charged with possession of a weapon for a dangerous purpose) blows my mind that the home owner was charged. There has to be something else going on there such as the home invader running away and getting shot from behind or something, otherwise I can't understand why they would charge the home owner.

He was charged with aggravated assault and the intruder was airlifted with life threatening injuries. This will come down to whether the force he was was lawful, including if it was ‘reasonable’ and ‘necessary’. The law does not expect force used in self defence to be measured with exactitude.

I don’t want to speculate about an active criminal case. I would infer from the charges that police believe the force used by the recent and the injury that resulted exceeded what the law can support. It’ll probably be quite a while before we get much of an idea of just what went down in that apartment.

 

[Haggis]

The fact the home invader was armed as well (charged with possession of a weapon for a dangerous purpose) blows my mind that the home owner was charged. There has to be something else going on there such as the home invader running away and getting shot from behind or something, otherwise I can't understand why they would charge the home owner.

There's nothing in the article, or others, including the press release from Kawartha Lakes Police, that mentions a firearm being used/carried by either party.

 

[Halifax Tar]

He was charged with aggravated assault and the intruder was airlifted with life threatening injuries. This will come down to whether the force he was was lawful, including if it was ‘reasonable’ and ‘necessary’. The law does not expect force used in self defence to be measured with exactitude.

I don’t want to speculate about an active criminal case. I would infer from the charges that police believe the force used by the recent and the injury that resulted exceeded what the law can support. It’ll probably be quite a while before we get much of an idea of just what went down in that apartment.

It disgusts me that we would judge a victims use of force in repelling a home invasion.

 

[Halifax Tar]

The fact the home invader was armed as well (charged with possession of a weapon for a dangerous purpose) blows my mind that the home owner was charged. There has to be something else going on there such as the home invader running away and getting shot from behind or something, otherwise I can't understand why they would charge the home owner.

Its Canada. Nothing surprises me anymore.

 

[IKnowNothing]

This will come down to whether the force he was was lawful, including if it was ‘reasonable’ and ‘necessary’. The law does not expect force used in self defence to be measured with exactitude.

I don’t want to speculate about an active criminal case. I would infer from the charges that police believe the force used by the recent and the injury that resulted exceeded what the law can support. It’ll probably be quite a while before we get much of an idea of just what went down in that apartment.

How much latitude do investigating officers/crown have in applying defenses, proportionality tests etc. to their decision of whether or not to press charges?

The impression I get is that the prevailing standard for self/home defense cases (especially if a firearm or other weapon is involved) is to charge and let the court decide if it was justified. If my impression is correct- how does that compare to other crimes?

 

[brihard]

It disgusts me that we would judge a victims use of force in repelling a home invasion.

We don’t actually know what happened in that apartment and how the confrontation unfolded. A lot of factors will matter. Unless Canadian law shifts such that the mere act of being in a home unlawfully means your life is freely forfeit, some judgment will be necessary. Inside a residence is not a black hole of law.

How much latitude do investigating officers/crown have in applying defenses, proportionality tests etc. to their decision of whether or not to press charges?

The impression I get is that the prevailing standard for self/home defense cases (especially if a firearm or other weapon is involved) is to charge and let the court decide if it was justified. If my impression is correct- how does that compare to other crimes?

There’s no different standard that I’ve ever heard of for such cases. To charge (or in B.C./Quebec, to recommend charges), police have to have reasonable grounds to believe a person has committed a specific criminal offence. Considerations like self defence (section 34 of the Criminal Code) and lawful use of force to, e.g., ‘citizen’s arrest’ (sections 25 and 494 respectively) should absolutely be taken into considering when deciding whether to lay/recommend charges.

Once charges are laid/recommended, crown own the choice to continue (or in B.C./QC) approve) prosecution based on the likelihood of conviction and the public interest.

I can read some stuff between the lines on this one, but I don’t actually know and neither does anyone else here. We’re probably all going to be stuck waiting in frustration for more info that may not come until an eventual trial.

 

[Colin Parkinson]

A short description of the process. We need a test that gets applied to self-defence acts, prior to charges being laid and lessen the number of times a person doing self-defence has to defend themselves against the Crown. In the past the Crown has not always been neutral and in the past has been hostile to people acting in self-defense.

 

[Jarnhamar]

I wonder if there are any instances where a home owner just makes the intruder just disappear.

 

[NavyShooter]

"Why would I call the police...no-one else knows you're here."

The old story of the 3 S's - Shoot Shovel Shut-up.

 

[Oldgateboatdriver]

I wonder if there are any instances where a home owner just makes the intruder just disappear.

Queen Elizabeth I:
[Speaking of Edmund:] Well then he's vanished. Simply vanished.

Lord Percy Percy:
Like an old oak table.

Queen Elizabeth I:
Vanished, Lord Percy, not varnished.

 

[brihard]

A small update: the resident arrested and charged with aggravated assault against the intruder in Lindsay, ON allegedly used a knife. Given the nature of knife wounds it’s not hard to imagine injuries rising to the level of agg assault.

It’ll boil down to the resident’s ability to explain why they believed they were facing imminent physical danger and why their chosen use of force was reasonable in the circumstances. Absolutely a case can be made for that, but the resident will pretty much have to testify in their own defence to do that.

The applicable section of the criminal code for anyone curious:

Defence — use or threat of force

• 34 (1) A person is not guilty of an offence if
  • (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
  • (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
  • (c) the act committed is reasonable in the circumstances.

• (2) In determining whether the act committed is reasonable in the circumstances, the court shall consider the relevant circumstances of the person, the other parties and the act, including, but not limited to, the following factors:
  • (a) the nature of the force or threat;
  • (b) the extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
  • (c) the person’s role in the incident;
  • (d) whether any party to the incident used or threatened to use a weapon;
  • (e) the size, age, gender and physical capabilities of the parties to the incident;
  • (f) the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
  • (f.1) any history of interaction or communication between the parties to the incident;
  • (g) the nature and proportionality of the person’s response to the use or threat of force; and
  • (h) whether the act committed was in response to a use or threat of force that the person knew was lawful.

 

[IKnowNothing]

@brihard

I know it's a big ask and completely understood if it's a no go, but would you be willing to articulate a (summary of a) fact set where you as the investigating officer would be professionally comfortable not recommending/ charging a home owner for use of a firearm in a home invasion?

Or alternatively- Father of 2 Ignatius Kale Noble wakes up when he hears a B&E on his ground level. He wakes up his wife, and ensures that the two of them and their children as far from the intruder (bedroom at end of hall upstairs) as possible, takes a post outside their door with a loaded shotgun, and calls 911.

Situation A - the police arrive and apprehend the intruder in the basement. If the police become/ are made aware that the bolded happened, what are the odds that Ignatius will be charged with possession for a dangerous purpose?

Situation B - the intruder (who has a knife) climbs the stairs despite being warned by Ignatius (calling his bluff), Ignatius sees the knife and levels his shotgun (distance 15 feet) and holds the intruder at gun point, police then arrive, what are the odds that Ignatius will be charged with possession for a dangerous purpose AND pointing a firearm?

 

[brihard]

@brihard

I know it's a big ask and completely understood if it's a no go, but would you be willing to articulate a fact set where you as the investigating officer would be professionally comfortable not recommending/ charging a home owner for use of a firearm in a home invasion?

Sure. Hypothetical: Two adults and two kids asleep at home. 3 am, adult with their PAL hears the door getting smashed in. Adult accesses a lawfully owned and stored shotgun from a safe in the bedroom closet, loads it up and chambers a shell. Adult steps out into the hallway between their door and the neighbouring kids’ room adult hears movement down the hallway and yells “get out, I’m calling police!” Instead of getting out, intruder comes down the hallway and the adult sees the intruder holding a knife. Adult sees said knife-armed intruder coming at them. Adult is the only thing between armed intruder and the rest of the family, and has no realistic ability to retreat. Armed intruder can realistically be feared as a threat to the lives and safety of the family. Adult puts a shell’s worth of 00 buck into the intruder to stop the imminent threat. The adult assesses that the armed intruder is no longer coming at them in a way that presents a threat, they continue to cover the intruder with the shotgun while waiting for police, and they ground arms and keep their hands out and visible when police arrive.

It’s super bare bones, but in a situation like that I could absolutely see a fact pattern where we could comfortably not charge the homeowner. Now, there’s gonna be a search warrant, attempt at statements etc- the smart money is for the resident to lawyer up and maybe submit a written statement to police to articulate that perceived threat of imminent death or grievous harm; self defence is an affirmative defence that you pretty much have to claim on your own behalf. If we show up and we’re looking at some dude laying on the floor whose innards are now his outtards, and we don’t have someone telling us what happened so we can form a reasonable belief that it was self defence, well, in that absence of a story we’re investigating discharge firearm with intent, and some version of a homicide offence. Someone who defends themselves will have to tell police or the courts that they were defending themselves. Probably the first source for that info will be from 911 dispatch audio, but more info that that will be needed.

Good chance that in such a hypothetical the resident will be getting arrested at least initially. An arrest doesn’t mean they must be charged.

All that said I’ve never had that call for real. That’s just my take from having thought about it over the years, either as a responding officer (which given what I do now I likely won’t be), or as someone who finds themselves in that position.

 

[IKnowNothing]

That’s just my take from having thought about it over the years, either as a responding officer (which given what I do now I likely won’t be), or as someone who finds themselves in that position.

Thank-you- very much appreciated.

And I swear officer (and the timestamps support) that my added hypotheticals were edited in before reading your post- funny coincidence. The bolded is where I'm coming from. Oddly it those "non-discharge" scenarios that give me more concern wrt to the law.

 

[Haggis]

Trouble sleeping? Try this: Executive Summary - Bill C-26 (S.C. 2012 c. 9) Reforms to Self-Defence and Defence of Property: Technical Guide for Practitioners

 

[KevinB]

Thank-you- very much appreciated.

And I swear officer (and the timestamps support) that my added hypotheticals were edited in before reading your post- funny coincidence. The bolded is where I'm coming from. Oddly it those "non-discharge" scenarios that give me more concern wrt to the law.

From my understanding of Canadian Criminal Law (and I haven't lived in Canada for 21 years), in your scenario B, the Intruder is committing an Indictable Offense by breaking into the home with a deadly weapon.
That would allow the homeowner to:
1) Call 911
2) Arrest or Detain the intruder until Police arrive
3) Given the fact the intruder was armed, the homeowner should be able to articulate why they felt threatened, and why they had their firearm to ensure the suspect remained compliant.

As long as there was no misdeeds on the behalf of the homeowner they should be in the clear.
I.E. don't threaten them with various things if they are being compliant.

As has been reiterated numerous times in this thread, calling 911 is a key aspect - obviously if the choice is get your gun, or call 911, get the gun first - and then when safety able, call 911.

 

[NavyShooter]

"I wish to speak with my Lawyer before I make any statements."

 

[Fishbone Jones]

Let's not forget the thousands of dollars, restrictions and time that the homeowner is going to incur trying to defend himself from the Crown.

Aggravated assault Not many civies or even soldiers, will be thinking clearly. Adrenaline, fear, flight or fight, unknown assailant, what is their purpose there, what are they armed with, how far are they prepared to go with their attack. All questions you must answer to yourself, in seconds, before acting to ensure you neutralize the threat without opening yourself up to a Crown with skewed priorities.

Although not the case here, if you use a firearm to protect yourself and family, it'll be seized along with any other firearms you own and will stay that way until you have a favourable decision. Probably a couple of years +/- after the incident. If they determine you used excessive force, you'll likely loose everything. Of course once they charge you, you can also likely expect more firearms charges under firearm and ammo storage laws, dangerous usage, etc. They might let you plead it down by surrendering all your guns, PAL and accepting a lifetime firearms ban.

"I wish to speak with my Lawyer before I make any statements."

Best advice. Identify yourself, show ID, then clam up until your lawyer is sitting next to you.

Probably a good time to mention, for a $25 yearly fee, the CCFR provides lawyer services with firearms educated lawyers, for firearms related incidents.

Legal Services Bundle - Canadian Coalition for Firearm Rights

firearmrights.ca

We need some form of Castle Law here.

 

[Fishbone Jones]

As has been reiterated numerous times in this thread, calling 911 is a key aspect - obviously if the choice is get your gun, or call 911, get the gun first - and then when safety able, call 911.

Before or after. It won’t make any difference to the response time.