Transcription
Hello and welcome to Wrunk of the Bailey. My name is Ian Wrl. I'm a Canadian criminal defense and firearms lawyer. A lot of you have asked me for my thoughts on the conservative proposal for a stand on guard principle to be incorporated into Canadian law.
Now, for the people who aren't Canadian, this is a bit of a pun. The stand on guard is from the Canadian national anthem, but it's a bit of a twist on stand your ground. So, this is something that has already been criticized by a number of people. I've seen people, including defense lawyers, say that this would be effectively something that would allow for a hunting license against people who trespass into your house. And in response, I have to wonder if those people are high because it does nothing of the sort.
If you're paying attention and if you watched my last video, I said I'd have some criticism for Pierre Polyavra. And here's the criticism. I don't think that this proposal will actually do a whole lot. Let's have a look at what's being proposed. So they note, today Conservative leader Pierre Polyvra announced the stand on guard principle, a proposed amendment to the criminal code that would ensure Canadians won't be thrown in jail for simply defending their homes, their families, and themselves. Conservatives are calling on the government to introduce a bill enacting this principle this fall, failing which one of the party's members of parliament will do so in a private members bill.
So all of that sounds great and this is an introduction where we're hearing all right, we're going to do all this important stuff. I'm going to skip over this next line for now. We're going to come back to it because this line is really the only thing that tells us what they're actually proposing. But it continues on talking about how awesome this bill will be. Says, "Your home, your family, your life," said Polyver. "If someone breaks into your home and puts your family at risk, you shouldn't be forced to worry about being thrown in jail for doing what you must to protect their lives." That sounds like a great thing to me. And Canadians, I feel, really are calling out for this. A lot of people are seeing cases and they see them in the news and they're just horrified. where people who have faced home invasions end up facing charges and even if those charges are ultimately dropped, the effect of having been charged is in some cases pretty ruinous.
They actually give one of these examples, but they first go on to talk about the issue. They say, "Under section 34 of the criminal code, Canadians have the right to use force to defend themselves and others from threats of force." That's correct, but the law is vague and subjective. Also correct. Too often, ordinary Canadians face years of expensive trials while violent repeat offenders walk free on easy bail because of Liberal laws C5 and C7 uh C75.
Now, here's the thing. The bail laws that allow for, you know, the home invader to get bail are the same bail laws that allow for the home defender to get bail when they get charged. This is one of the problems of proposed reforms that needs to be carefully navigated if we're going to restrict bail. We need to make sure it's still available for people who end up defending their home. But they give an example here, and this is kind of a shocking example. Back in 2019, three masked intruders, one armed with a sawoff shotgun, broke into a residence in Collingwood, Ontario. Cameron Gardner and his girlfriend were zip-tied as the burglars searched the townhouse, eventually breaking free. Two of the attackers were shot as Gardner rest wrestled for control of the weapon. But when the cops came, Gardner was the one arrested, ultimately spending 6 months in jail before the charges were dropped.
So that sounds pretty horrific, right? He has to defend himself and his girlfriend and six months in jail ultimately for them to go, "Yay!" You know, charges are dropped. And the problem is is that a lot of like defense lawyers especially will say, "Oh, well, this is a victory. The charges were dropped. Nothing. What are you upset about?" Six months in jail is what he's upset about. Right? This is something where you've got a clear victim here and is somebody who's getting quite horribly treated by our system.
So they say that their amendment protects the innocent. If a violent intruder breaks into your home and threatens your family, the law will finally be on your side, not theirs. Presumes reasonleness. Force used to stop a home invader who poses a threat will be deemed reasonable. There will be no more second-guing after the fact. Ends legal limbo. Canadians defending themselves should not spend years in court while criminals walk free. This law gives clarity to citizens, police, and prosecutors.
Okay. Now, what we don't have attached here is a proposed like text of the law. Instead, we've just got a description of it. And this is the description. It said the amendment to section 34 sub 2 would deem the use of force to be presumed reasonable when used against an individual who unlawfully enters a house and poses a threat to the safety of anyone inside.
So here's the issue. They say they would deem the use of force to be presumed reasonable. Now most presumptions in Canadian law would be are things what we'd call a rebuttal rebuttable presumption. And a rebuttable presumption means that it can be disproven. And here's the issue is that there's already a rebuttable presumption that applies to say that your force is deemed reasonable when used against an individual who unlawfully enters a house and poses a threat to the safety of anyone inside. Let me sort of explain how this works. So, in Canadian law, for self-defense to be raised as a defense, there only needs to be what they call an air of reality to it. That means that basically it it can't be crazy that you're arguing self-defense. So, you can't, for instance, argue self-defense if you broke into the house of an 80-year-old grandmother and beat her to death and there's no indication that she was any threat to you or anything like that. There's no air of reality. So, you don't get to argue that. But if somebody has broken into your house and poses a threat to your safety, then you're already at that air of reality for self-defense. And then you are presumed innocent until and unless proven guilty beyond a reasonable doubt. Which means that the crown, the government must overcome the presumption of innocence. Which means that they have to overcome essentially a presumption that your actions were reasonable. Because in order to convict you, they have to prove beyond a reasonable doubt that your actions were not reasonable.
So the long and short of this is that this presumption already exists in Canadian law. Now if they meant to say that it will be presumed reasonable and it's an irreutable presumption, then they certainly phrased this in an odd fashion because they said the amendment would deem the use of force to be presumed reasonable when used against an individual who unlawfully enters a house and poses a threat to the safety of anyone inside. They could just say would deem the use of force to be reasonable when used against an individual, etc., etc., etc. The fact that they included the word presumed there really suggests that they mean a rebuttable presumption. And if that's not what they mean, then they should clarify this. But it certainly seems to be that it's essentially a proposal to change the law to what we already have. And if that's what they're doing, then this is not a great change to the law. This is also kind of misleading the public in the sense that this is a trick politicians do all the time where they're like, "We're going to change the law to make it exactly like the way it already works."
So, I would love to see some clarity here. I'd love to see a an actual, you know, some actual text of legislation, but from what we have right now, it looks like this proposal is a proposal to do nothing. And that doesn't fill me with joy. This is an issue where the Canadian public is really demanding some changes, demanding to see um things work better. And if that's not what we're going to get, then I'm not super thrilled.
I've got my own proposal for how things could be changed. I'm not going to pretend that it's the only sort of workable or viable method. It's just one I think would be a good change. And that is to essentially say that we'll raise the standard to beyond reasonable and into something like grossly disproportionate to a degree that shocks the conscience of the public. Something like that as a standard or well and or because I'd also like to add something that adds a requirement for the prosecution to make a preliminary showing of that fact before a trial gets on. So that you don't have somebody who has to sit there for six months waiting for a trial. The matter can be quickly disposed of.
So yeah, now I did note, you know, so this is my criticism of Pierre Polyvra in that it appears that what's being put forward is a potential bill that won't do anything. I also have some criticism for the legal commentators out there who have essentially fear-mongered on this and said, "Oh no, look at how terrible this is. The sky will fall if this is allowed to be put into place." And I just kind of wonder, did you not read the same thing I read? Because if you're saying, "Oh, we're going to have American style," and it's always American style whenever they're fear-mongering here. You know, people are going to just be able to, you know, shoot somebody who knocks on their door. They're going to be shooting kids who are trick-or-treating. They're going to be shooting the Uber drivers. All of these things. And I go, "That's not at all what this says. This is such a a non thing that I don't understand how these legal commentators are saying this with a straight face and expecting us to continue to take them seriously because at that point it becomes very clear that perhaps they're motivated by political leanings instead of by cogent legal analysis. And if you're doing legal analysis, you got to do it when you agree with the party as well as when you disagree with them. Just kind of a thing there, right? Um if your legal analysis always lands along party lines, then maybe it's not all that great. Yeah.
Anyway, I know I'm going to get some people giving me crap over this because there are people who are going to be like, "Wait a minute. Why are you criticizing this? Isn't this a proposal to improve things?" No, it's really a proposal for the status quo. And I feel it's kind of a problem when you're saying, "Here's why the public demands change and here's how we're not actually going to change anything." So yeah, um I suspect this is kind of an initial press release. It's kind of an initial foray into things. Maybe they'll improve it. Maybe they'll clarify it. Maybe I've misunderstood. But um I'm not wowed at this point. We'll put it that way.
So thank you for watching. I know lots of you have asked me to comment on this and it's been a bit for me to actually get to commenting on it. both because I was following trials and also I got the flu kind of sucked and I'm still catching up on things I've got to do. But um yeah, I really felt this one needed some commentary because it's really underwhelming. I I got to say. So, thank you for watching. I hope you found this to be interesting or educational. I also want to thank my Patreon supporters at the $50 level. Bottle Shock and Oz, Canada's National Firearms Association, PJs Forever, Canadian Coalition for Firearms Rights, Canadian Shooting Sports Association, Kyle Fox, Angela Skelton, Cello Sha, and uh Johan/ Phoenix, and at the $20 $20 level, Marvin CZed, Cameron Johnson, Larry Calak, Andrew Elsich, Mark Drunk, All of the Bailey's, and Lindsay Metaf. Thank you as well to my $10 supporters who will be in the crawl immediately following. Thank you for watching. Hope this is armed with knowledge. See you next time.
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