Poilievre's idea to amend Criminal Code wouldn't help Canadians acting in self-defence, law experts say

conservativist Leader capital of south dakota Poilievre's proposed crook Code amendment to strengthen legal protections for Canadians defending their homes would offer no real benefit, criminal law experts say.

His demands come in light of a 44-year-old man from Lindsay, Ont., being charged for allegedly attacking a home intruder. On Friday, Poilievre pounced on the moment to suggest amending the Criminal Code so use of force against a person who illegally enters a home and poses a threat to those inside is presumed reasonable.

But criminal law experts say Canadian law already favours homeowners in home invasion cases, so Poilievre's idea does nothing to enhance their protection from criminal charges.

Noah Weisbord — a law professor at McGill University who specializes in cases involving the use of force in self-defence — said the onus is on the prosecution to prove beyond a reasonable doubt that force used against an intruder was disproportionate.

Section 34 of the Criminal Code provides the framework for self-defence and the defence of others. 

Under that law, Canadians are not guilty of an offence if they believe on reasonable grounds that force (or the threat of force) is being used against them or another person.

Their act of defence must also be for the purpose of defending or protecting themselves and must be reasonable in the circumstances.

When the Crown assesses for a reasonable prospect of conviction, it considers evidence, such as physical evidence and testimony.

Therefore, Weisbord says, the Crown pursuing a case against a homeowner who confronts an intruder suggests the prosecution has evidence to argue that force used under the circumstances may not have been in self-defence. 

"There's evidence that we don't know about, about what the homeowner did in that altercation that's making the Crown think that it was excessive force, or it wasn't reasonable force," he said.

Criminal defence lawyer Kim Schofield said Poilievre's proposed amendment "doesn't clarify or make things simpler" and could put the public in more danger. 

"The presumption of reasonableness is a very dangerous and slippery slope," Schofield said. "What happens if someone makes a mistake and if the home invader is not truly an invader?"

Schofield says just because someone comes to your door, you "don't have the right to commit a violent act inherently, and we have to act reasonably, and that's, I think, what the Criminal Code allows."

Poilievre outlines proposal to clarify Criminal Code self-defence laws

In determining whether the act of defence is "reasonable," courts consider nine factors — including the nature of the threat, the physical capabilities of the parties involved, the history of the parties and whether any party used or threatened to use weapons.

Poilievre argued that Canadians who are defending their homes "don't have time to think about nine conditions," calling it wrong to apply "a complicated, indecipherable legal doctrine when you were only doing what is right."

But Schofield emphasized that people facing exigent circumstances are not expected to consider those factors.

"They are merely guidelines for judges at the end of the day, who are triers of fact," she said.

Weisbord cautioned against adopting laws like Florida's Stand Your Ground statute, which provides legal immunity to people who "meet force with force, including deadly force" when acting in self-defence.

"Whenever you do that, in any jurisdiction, suddenly all these minorities and marginalized people start getting shot by firearm-carrying, property-defending aggressors," he said.

In 2017, a group of researchers published an evaluation of Florida's Stand Your Ground law and found that it was linked to a noticeable increase in homicides and homicide by firearm between 2005 and 2014.

Implementing such a law in Canada could disproportionately affect marginalized communities, Weisbord said, citing the case of Saskatchewan farmer Gerald Stanley.

In 2018, a jury acquitted Stanley in the fatal shooting of Colten Boushie, a 22-year-old Cree man from Red Pheasant First Nation, after he and four others drove onto Stanley's farm in Biggar, Sask.

Weisbord says he's also concerned that a Stand Your Ground law could lead to violent people claiming they fear for their lives when their main intent was to attack someone more vulnerable.

"It's often violent felons … that are basically just trying to get off the hook after being aggressive and often succeeding," he said.

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