Guilt Notwithstanding His Innocence
Canadian law is funny, like really funny. In a country where we pride ourselves on being unlike the ‘Mericans, to rationalize a questionable sense of moral superiority, is misguided at best and laughable at worst. But what does this have to do with Canadian law being funny? Well, while we may have a right to free healthcare (although, taxpayers and anyone who’s had the delight of needing prescription medication and did not have private insurance might claim otherwise), we do not enjoy the basic protection of the law at the onset of self-defense cases against armed intruders. However, a recent case just may entrench a legal precedent which would immunize individuals acting in self-defense from criminal convictions.
Unlike the United States, Canadians do not have the right to bear arms, while firearm ownership is not prohibited, the constitution does not grant us the right to own them, but the privilege to. Canadians are not for the most part firearm enthusiast, while we do have a strong hunting culture, roughly 26% of the population are legal firearm owners, while our southern neighbours have more firearms per capita than citizens. This marks a critical cultural difference between Canada and the United States, the F-Around to Find out ratio acting as a deterrent to invaders is far lower in Canada than it is in the United States. This fundamental cultural difference has long translated into a blurred legal gray zone when it comes to self-defence, which nearly affords criminals legal recourse against their victims. This unfortunate instance is because Canada does not have a ‘Castle Doctrine’ which many states in the United States do. The ‘Castle Doctrine’ is ultimately the solemn right to use lethal force when faced with an intruder, again we aren’t talking about outside your home, we are still talking about inside your home.
On February 22nd 2023, 22-year-old Ali Mian was woken up by a group of armed intruders breaking into his home in the early hours of the morning. The intruders were visibly armed and attacked Mian’s mother leaving her physically harmed. Mian being a legal firearm owner swiftly acted in some might say heroic manner, while others might say criminal manner; and fatally shot one of the two men who were attacking his mother. Multiple shots were quickly exchanged inside the home before the rest of the men ran out to their vehicle and fled the scene.
The Police officers who arrived at the scene recognized that the intruder was in illegal possession of a firearm and acknowledged that Mian was in legal possession of his firearm. They also arrested a 20-year-old man at the scene and charged him with breaking and entering as well as unauthorized possession of a firearm. The police took the testimony of Mian’s neighbours, his mother, and Mian himself. However, even faced with unambiguous evidence that Mian was a great Samaritan according to his neighbours, protecting his mother against intruders who were equally armed though illegally, they still went ahead and charged Mian with second-degree murder and arrested him. Mian was then released on bail on March 2nd after having spent weeks incarcerated for defending his home.
This case has incited legal debates around the country revolving around the legality of using deadly force and how and when it can be permissible under Canadian Criminal Law, and some of the answers may shock you. Michael Spratt, a criminal defense lawyer in Ottawa mentions:
“If someone’s breaking into your house, that doesn’t give you the right, necessarily, to apply force to them – and certainly not to apply lethal force.”
Notice we aren’t merely talking about lethal force, but the mere right to protect your private property. While this statement might rough some feathers, Michael Spratt isn’t giving his opinion, he is explaining the law, which is scary to think that criminals may have a greater right to your property given they can orchestrate an attack which in the best-case scenario they get your possessions and in the worst, they can sue you for breaking into your property.
This brings us to question when can Canadians use force to defend themselves? Three requirements must be met:
- A reasonable fear of imminent death or grievous bodily harm,
- Whether the force that was deployed that was used was deployed “for the purpose” of defending or protecting yourself or the other person “from that use or threat of force.”
- Whether your actions were reasonable
The reasonableness then becomes difficult to assess and can arouse controversial verdicts here’s a non-exhaustive list;
- Nature of the force or threat,
- The extent to which force was imminent and if other means were available to you,
- The person’s role in the incident
- The size, gender and physical capabilities of the parties of the incident,
Luckily, Mian’s legal team was able to provide enough evidence to meet all three requirements of self-defence. On July 31st 2023, the crown withdrew murder charges against Mian and returned his passport, firearm license, and firearms. This whole debacle is a huge win for law-abiding Canadians who can now rest assured that the law will to a lesser extent protect criminals attempting to harm your person, the law is ruled by precedent, and the more precedents which find the would-be victim innocent against their perpetrators, the safer our society will be. This case has had the purpose of reimagining what self-defence means in Canada, and further entrenching the right for Canadians to fight the vile of evil with equal fire, which until recently was hardly the case.
