Ian Thomson was attacked by people throwing molotov cocktails at his home near Port Colborne in August of 2010
Tamsin McMahon, National Post · Thursday, Mar. 3, 2011
In a move that acknowledges the difficulty of prosecuting people who feel forced to act in self-defence, Crown attorneys have dropped two gun charges against an Ontario man who shot at masked intruders firebombing his home, saying they had no “reasonable prospect of conviction.”
The rules around self-defence in Canada are “complex,” prosecutors said, and courts have “repeatedly” established that victims can’t be expected to thoughtfully examine all consequences of using deadly force while under attack.
“Because each case is unique, with widely diverse and sometimes contradictory evidence, no broad policy statement is intended with respect to the use of firearms in the defence of one’s home,” the Crown brief says.
According to a written submission from the Crown, Ian Thomson awoke early on a Sunday morning last August to find three masked men firebombing his Port Colbourne home, yelling “are you ready to die” in what the Crown called a “neighbour dispute that has been simmering for several years and has now boiled over.”
Prosecutors say Mr. Thomson, 53, grabbed a .38 handgun and ran out his front door, firing three shots toward the arsonists, who ran off uninjured. Four men face arson charges in the firebombing.
Police charged Mr. Thomson with four gun offences, but on Wednesday, Crown prosecutors withdrew the most serious charges of pointing and using a firearm.
He hailed the Crown’s decision to drop the charges as a victory, but said he is still determined to fight two remaining charges of careless storage of a firearm, which carry a maximum penalty of jail time.
“I’m grateful that the Crown has come to reason and seen the folly of their ways,” he said. “But I look at these as being false and spurious charges that were laid against me, all of them. The fact that they’ve removed two of them is positive, but it’s not over yet.”
Mr. Thomson’s lawyer decried what he said was an “epidemic” of police targeting legal gun owners who use their firearms to defend themselves and their property, cases he said are too often used to test the legal boundaries of self-defence when they shouldn’t have been laid at all.
“I keep seeing these kinds of charges on an almost daily basis,” said Edward Burlew. “They constantly seem to be want to test the waters by laying charges that don’t have any substantiation, especially with respect to firearms. It seems to be an epidemic.”
Mr. Thomson’s case, in which charges were laid and then later dropped, is one of “maybe 100 cases that I have at home just like this,” said Lawrence Manzer, a New Brunswick man facing firearm charges after he used an unloaded shotgun to scare off three teenagers prowling through his backyard last March. “Every one of these shows there is something inherently wrong with the Criminal Code or the way the police interpret it.”
A spate of high-profile charges against people defending their homes and businesses from criminals prompted the federal government to introduce changes last month to the Criminal Code that would broaden Canada’s citizen’s arrest and self-defence laws.
“Canadians who have been the victim of a crime should not be re-victimized by the criminal justice system,” Prime Minister Stephen Harper said on one of two visits with David Chen, the Toronto grocer who was acquitted on charges he tied up a repeat shoplifter. But some legal experts and even gun proponents say that self-defence is often a complicated legal question that must be answered by the courts, even if many of the charges are eventually dropped or dismissed.
“It seems in some sense to violate common sense, but self-defence is a morally ambiguous situation and therefore a legally ambiguous situation,” said Gary Mauser, a firearms supporter and professor emeritus at Simon Fraser University in B.C. who studies gun control legislation.
“In political science, one of the definitions of government is an entity that arrogates to itself the use of deadly force. If citizens go around killing each other, that’s questionable as a reasonable use of force just on political science grounds.”
Self-defence charges are among most complex legal cases and the most difficult for the Crown to win, said Andrew Barbacki, a Montreal defence attorney and former Crown prosecutor who lectures on criminal procedure at McGill University.
“It seems very straightforward, but when you get into the law it’s quite technical and not easy to sort out,” he said. “Ultimately to say what’s reasonable and not reasonable is a judicial function. I don’t think it’s a bad thing in case of doubt whether there has been a legitimate use of force to charge someone and let a person defend themselves. It just depends on how clear-cut it is, but in law there’s nothing much that is clear cut.”
The Conservatives’ proposed Criminal Code changes reflect existing case law on self-defence, Mr. Mauser said, and are unlikely to change how often people who ward off criminal with firearms find themselves before the courts.
“There’s a basic difference between the law and the application of the law, so I doubt that the changes will have any impact on the courts and their interpretations,” he said. “Courts and lawyers talk to themselves and they do not accept much political direction.”