The Right To Defend

Commentary, Aboriginal Futures, Brian Giesbrecht

Two recent cases have shone a spotlight on the very limited right that Canadians now have to defend themselves and their property. They are the Gerald Stanley case from Saskatchewan, and the recent Khil case in Ontario. In both cases property owners shot men who had invaded their property to commit crimes.

In both cases, Indigenous advocates have advanced the theory that the cases are essentially about race – the thief who was shot was an Indigenous man in both situations. However, this is not correct. The cases are essentially about self defence.

In the Gerald Stanley case, the Stanley family suddenly found their remote Saskatchewan farm invaded by five intoxicated people. It turned out that the five had a rifle with them. The rifle had been used to smash the windshield of a vehicle at a neighboring farm while the terrified owner, an older woman, who was alone at the time, huddled in her house in terror. She had no way of knowing if these brazen thieves would come after her after smashing that windshield.

The Stanley family also did not know what the thieves who invaded their property were planning to do.

The fact that the five would enter the Stanley farm in broad daylight, in plain sight of the Stanley family, and begin to steal a Stanley vehicle right before their eyes was ominous. If the thieves were that brazen, what would they do next?

The facts of that case were thoroughly examined in court, and the jury acquitted. The fact that the five desperadoes were Indigenous was not surprising. In Saskatchewan, an Indigenous man is 33 times more likely to commit a crime than is a non-Indigenous man. (This is a direct result of the disastrous reserve system that has created dependent communities that are ideal breeding grounds for dysfunction of all kinds). However, the significant issue in the case was Gerald Stanley’s right to defend his family, and not the racial background of Colten Boushie.

Similarly, in the Khil case, the important issue was not the racial background of the thief. In fact, there was no racial factor in that case at all. The jury heard that Khil saw the bare outline of a man sitting in his truck. Other evidence made it clear that the man had been caught in the act of stealing the truck. Khil testified that he thought the man was turning towards him with a gun in his hands. That is when he shot the man. Khil had no possible way of knowing anything about the background of the thief. He barely saw him. He certainly had no idea that the man was Indigenous. Indigenous advocates who say that the Khil case is about race are simply playing a political game.

The important issue in both cases is the right of a person to defend his or her family and property. Until recently the old English maxim that “a man’s home is his castle” was recognized as an unwritten guide for police and prosecutors in situations where an invading thief had been killed by the property owner. This is still the situation that applies in the United States, and in most parts of the world. Some of the American states have explicit “stand your ground” laws, but even in those that don’t it is unlikely that Khil or Gerald Stanley would have been charged with murder. Simply put, throughout history it has been recognized that a person has a right to defend themself, their family and their property. A person who chooses to invade the property of another does so at his or her own peril.

This is no longer the case in Canada. The RCMP have put property owners on notice that if their property is invaded they are to retreat into their houses, and call the police. Under no circumstance are they to attempt to defend themselves or their possessions. The Boushie and Khil case both make it clear that if a property owner disregards that advice and an invader dies, the property owner will be charged with murder.

The RCMP advice goes too far, and is out of touch with reality. It acts as an open invitation to criminals to break the law at will. Criminals are quite aware of this policy and realize that it makes rural residents sitting ducks. Two juries have now made it clear by their acquittals that the policy does not make sense. It does not work, because it works to take away people’s ancient right to defend themselves. Citizens will not tolerate that.

Canada does not need American-style “stand your ground” laws, but it definitely needs laws and policies that recognize the right of people to defend their families and their homes. In a situation where a thief dies while committing a criminal offence on private property, it should not be the norm to charge the property owner with murder. In fact, it should be the very rare case that results in a murder charge. Would-be thieves must get the message that if they venture onto someone’s property with the intention of committing a crime, they have only themselves to blame if something doesn’t go according to plan. If they end up losing their life, they are the author of their own misfortune.

The fact that two juries have now acquitted in self defence cases sends a strong message that the status quo is unacceptable.