Your home is your castle

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We need more details to judge: http://fullcomment.nationalpost.com/2013/04/29/matt-gurney-latest-home-invasion-case-to-test-canadas-self-defence-laws/

I can tell you where my baseline sympathies lie, though, and that’s with the homeowners.

I think there is merit in having some sort of legal process by which an incident like this is investigated, but unless the police have a full confession from one of the brothers, along the lines of “We disabled him then proceeded to beat the ever lovin’ tar out of him for 20 minutes,” charging them with any crime, never mind aggravated assault, seems excessive.

In theory, I don’t mind the idea that a person defending their home should be expected to use “reasonable force” but I suspect my idea of reasonable in the middle of the night, in my garage, living room or kitchen, may be different from a judge’s idea of reasonable as s/he sits in a courtroom.

Basically, I’m saying homeowners shouldn’t have carte blanche to execute people on their property but they should have very, very broad latitude to act in their own defense.

Let’s say an apparently unarmed intruder is stopped by a homeowner who’s armed with a bat. A police officer with a baton would presumably be required to detain that person without harming him or her (assuming the criminal isn’t taking further aggressive actions). I don’t think the same should be expected of a homeowner. Holding a criminal while waiting for cops to arrive isn’t a safe situation for a homeowner or his/her family. I happen to think one good whack to the knee – if you could execute it without putting yourself at greater risk – would be the smart thing to do. Two might be even better. I don’t know that I would do that, but I wouldn’t deem it unreasonable if someone did.

I also think some expression of anger is within the realm of reasonable. If the homeowner topped off the bat to the knee with a single kick to the stomach – a gratuitous, unnecessary blow struck in anger – that’s a “reasonable” thing to do when you wake in the middle of the night and someone has invaded your home.

If that kick was followed by 10 more, then bat blows to the head, then more kicks, and the intruder was put into a coma, that would warrant charges. But even then, the benefit of the doubt must go to the homeowner. As a society, we should demand an extremely high burden of proof before convicting someone protecting their home of excessive or unreasonable force. Barring a confession or videotaped evidence, there would be very few cases where a prosecutor could convince me the property owner should be found guilty. The homeowner may be guilty of a crime, yes, but I would need virtually ironclad evidence before convicting.

Then, even if the person was convicted, I would expect the courts to be lenient in sentencing.

Look, no one wants to give carte blanche to homeowners to execute anyone who makes the mistake of setting foot on their property, nor do we want to give license to homeowners to detain intruders and torture them before contacting the police. But what is “reasonable” in the middle of the night may seem unreasonable later in a courtroom.

You should not be held responsible for the health and safety of a person bent on committing a crime against you.

Homeowners should have the right to use active, brutal force to stop intruders, and the anger they feel from being frightened in their home should provide them a measure of cushion should they express that anger physically. The burden on prosecutors should be to prove the homeowner was clear-headed and safe, yet chose to engage in unnecessary violence against the intruder - violence that was strong in nature and lasted longer than, say, 10 seconds (or some other length of time that covers a quick, physical expression of anger).

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