Good afternoon, Mr. Chair, vice-chairs and committee members. Thank you for inviting me to address you today. It's always a pleasure to appear before this committee.
Unlike my last appearance, I appear today as an individual in my personal capacity as a criminal defence lawyer. Although my practice is based here in Ottawa, I regularly defend clients and try cases throughout this region. My work often takes me through small towns and villages, from Stormont, Dundas and Glengarry in the east to Renfrew and Lanark Country—like Dr. Drummond—in the west and all places in between.
I have seen first-hand the unique challenges faced by rural residents as both victims of crime, and all too often, the subjects of criminal charges themselves. I found last week's testimony by Edward and Jessica Maurice to ring particularly true in this regard. Their story, sadly, is one I have heard many times before: Rural residents confront intruders on their property. Sometimes the intruders are armed themselves. Invariably, when seconds count, the police are only minutes away. Like the Maurices, they are faced with an awful decision either to act in self-defence or to risk unimaginable consequences.
At the outset, I should distinguish between two entirely separate concepts. There is an obvious difference between vigilantism, which is a crime, and the act of self-defence, which is a long-recognized right in both the common law and the Criminal Code.
To be a vigilante is to act unlawfully, to seek retribution or vengeance for real or perceived wrongs. It is to take the law into one's own hands. It is antithetical to the rule of law in a free and democratic society. It should be discouraged and punished by the criminal justice system.
Self-defence, on the other hand, is something else entirely. For as long as the modern common law has existed, the right of individuals to use proportional and reasonable force in repelling unlawful threats has been recognized and protected. It is enshrined in our criminal law.
However, it has often been my experience that it is the property owners acting in self-defence who are themselves the subject of criminal charges. In the end, many of those clients are ultimately acquitted or, like Eddie Maurice, have their charges withdrawn before trial, but this is little consolation. By that point, they have been arrested, charged and often placed on strict bail conditions. Some don't get bail at all and must await their trials in custody. These arrests are highly publicized. In the Internet age, I often tell clients that it is not the criminal record that should be most feared, but the Google record. Web searches by neighbours, prospective employers and others turn up in the news and social media stories about their arrests and alleged wrongdoing.
Then of course, there is the expense. In Canada, notwithstanding one's ultimate vindication, there is little one can do to recover legal fees expended to defend against even the most baseless criminal charges. As my clients often realize, much as the Maurices did, the process is often punishment itself. What can be done to rectify this?
In my view, the starting point is the current self-defence provisions in the Criminal Code. To be clear, these sections were recently amended and consolidated by the previous government in 2012. It was a long time coming. In fact, as far back as 1995, the Supreme Court stated that legislative action “is required to clarify the Criminal Code's self-defence regime”. Indeed, the previous provisions were criticized by that court as being “highly technical”, “excessively detailed” and “internally inconsistent”. But there is more to be done, particularly in light of over five years experience with how even the new provisions are being interpreted and applied by police and prosecutors.
Canadians deserve consistency and predictability in the application of the criminal law. More important, it is fundamental to the rule of law that the boundary between illegal action and legal self-defence be clear to all. I offer for this committee's consideration a number of practical steps that can be taken to further clarify the Criminal Code's self-defence provisions.
First, Parliament should consider codifying the existing common law self-defence principles in the Criminal Code. While these may not change the ultimate outcome where a case goes to trial—of course a judge knows the law and will instruct the jury accordingly—it would give clear guidance to law enforcement when they are considering a threshold question of whether or not to lay the charge, that is, whether reasonable and probable grounds exist to believe that an offence has been committed.
These recognized common law principles include the following:
One, the accused bears no onus to demonstrate that there was no reasonable way of withdrawing or retreating, from Ward, the Ontario Court of Appeal.
Two, people in stressful and dangerous situations do not have time for subtle reflection, from Mohamed, the Ontario Court of Appeal.
Three, a person defending himself against an attack, reasonably apprehended, cannot be expected to weigh to a nicety the exact measure of necessary defensive action, from Baxter, the Ontario Court of Appeal.
Four, what is relevant to assessing a claim of self-defence is how the accused perceived the relevant facts and whether the perception was reasonable. In other words, an accused person is entitled to be mistaken so long as that mistake was a reasonable one. That is from Pétel, the Supreme Court of Canada.
Next, Parliament should consider an amendment to the Criminal Code that would clarify the circumstances in which an accused person would not bear the burden of establishing the evidentiary basis for a claim of self-defence. At present, in order for a court to consider a claim of self-defence, the judge must find that there is an “air of reality” to the defence, in other words, that the possibility exists in the evidence. While this does not formally shift the burden of proof to the accused, that is often the practical effect. Once this air of reality is met, the Crown must disprove the claim of self-defence beyond a reasonable doubt.
I would recommend an amendment to the Criminal Code establishing that the air of reality is automatically met where the accused is on his or her own property and the victim is trespassing or otherwise unlawfully there.
Finally, I would propose a wholesale streamlining of the existing self-defence provisions. We can look to other jurisdictions for guidance.
For example, in New Zealand, the law is phrased as follows:
Every one is justified in using, in the defence of himself or herself or another, such force as, in the circumstances as he or she believes them to be, it is reasonable to use.
I conclude with this thought: Rural victims of crime should not find themselves twice victimized, once by criminals, and again by the criminal justice system. Much can be done to ensure fairness in how the Criminal Code is applied and enforced, and to restore the bond of trust between rural Canadians, law enforcement and the courts.
Thank you very much for your kind attention.