Article body

Introduction

In 2012, Parliament overhauled Canada’s self-defence and defence of property laws.[1] These reforms relaxed and eliminated the traditional constraints on defensive force—including necessity and proportionality—leaving police, prosecutors, judges, and juries unprecedented discretion to evaluate the reasonableness of an accused’s actions “in the circumstances.”[2] Canada’s new law is arguably more permissive than Florida’s notorious stand-your-ground law (Stand Your Ground), which largely dispenses with the traditional retreat requirement before deadly force is legally justifiable.[3] Canada’s self-defence innovation is troubling in light of the Floridian experience, where an expanded self-defence law correlated with a surge in homicides,[4] capricious application, and inter-communal strife.[5]

Research into the evolution and impact of United States (US) self-defence laws provides a warning to Canadians about our 2012 innovation.[6] This paper demonstrates that though the history of self-defence differs in the US and Canada—most significantly due to the absence of institutionalized slavery in Canada and the lesser importance of guns in Canadian politics—there are also important parallels to consider. Late nineteenth century westward expansion of governmental authority into Indigenous territories, the changing status of women in the twentieth century, and populist surges have contributed to the evolution of self-defence in both countries.[7] The conceptual architecture of Florida’s Stand-Your-Ground legislation and Canada’s 2012 innovation reveal an underlying struggle between the principles of preservation of life on the one hand and protection of property, liberty, and honour on the other. Examining Canada’s 2012 law in a historical and theoretical context may help Canadians avoid some of the mistakes that have resulted in capricious outcomes and intercommunal strife in the US.

A key lesson of this research is that expanded self-defence and defence of property laws are of particular concern in climates of fear—places where communities are preoccupied with intergroup violence. In such environments—depleted US inner cities, segregated rural communities, contested international hotspots—anxious neighbours arm themselves in anticipation, increasing the risks of a fatal conflagration.[8] They are also more likely to perceive threats and to see the need to resort to violence to respond to those threats.[9] In The Strategy of Conflict, Thomas C. Schelling warned, “[f]ear that the other may be about to strike in the mistaken belief that we are about to strike gives us a motive for striking, and so justifies the other’s motive.”[10]

The law can encourage or deter forcible responses to perceived threats by, for example, emboldening individuals to stand their ground (an expanded self-defence law) or requiring claimants to retreat to the wall before killing their assailant (a narrower one). The law may also exacerbate intercommunal tensions in the ways it determines when violent self-help is permissible.[11] When self-defence is raised in court, the claim rests in various ways on decision-makers’ perceptions of the reasonableness of the defendant’s fear and of their actions in the circumstances. The reasonableness standard is informed by community preoccupations, whether subway violence, rural crime, domestic violence, or dangerous foreigners. Further, seemingly neutral drafting choices—for example, whether self-defence is a justification or an excuse, whether the law prioritizes objective or subjective elements, whether legislation is built around bright-line rules or flexible standards, whether the burden to prove self-defence falls on the prosecution or the accused—have distributional effects. The laws of self-defence have historically favoured White, property-owning men, while non-White, female, poor, sexual minority, and gender-nonconforming people are more likely to be punished for defending themselves and less likely to receive the support of the courts when they are the victims of violence.[12] Though some argue that a flexible self-defence law can be more inclusive,[13] there is accumulating evidence that expanded self-defence laws exacerbate the problem of uneven applications.[14]

Canadians confident that our legal culture inoculates us should think again: expanded self-defence laws have been linked with racial inequalities in Florida and thirty-two other US states,[15] and even before Parliament expanded Canada’s self-defence laws, our criminal justice system was contending with biases of its own.[16] The dangers of capricious or racially motivated application were present in the February 2018 case against Gerald Stanley, a White Saskatchewan farmer who shot and killed twenty-two-year-old Red Pheasant Cree First Nation memberColten Boushie. This shooting happened in the course of an altercation after Boushie and four friends drove onto Stanley’s farm with a flat tire in 2016.[17] The chief of the Federation of Sovereign Indigenous Nations warned that by linking Boushie’s death with a surge in thefts in the area, the police provided “just enough prejudicial information for the average reader to draw their own conclusions that the shooting was somehow justified.”[18] Seven months after Boushie’s death, the Saskatchewan Association of Rural Municipalities passed a resolution with ninety-three per cent support to “lobby the Federal Government to expand the rights and justification” for self-defence in light of an alleged increase in rural crime.[19] A jury comprised entirely of ostensibly non-Indigenous members acquitted Stanley of second-degree murder and manslaughter pursuant to a hybrid defence melding defence of property, defence of person, and accident. Stanley’s highly improbable “hang-fire” gun malfunction occurred after Boushie’s vehicle was disabled and Stanley had fetched his handgun from the shed, fired two warning shots, approached the driver’s side window, and reached in to shut the ignition off with his gun to Boushie’s head.[20] It could only be deemed accidental if the court accepted that Stanley was lawfully defending property and person prior to the fatal shot. Indigenous scholars, activists, and community members denounced the verdict as a product of White supremacy, colonialism, and entrenched structural inequalities in the Canadian justice system.[21]

Canadians hope that safeguards in our criminal justice system and legal culture will prevent the kinds of abuses seen in Florida and other US jurisdictions with expansive self-defence laws.[22] Equality norms embodied in the Canadian Charter of Rights and Freedoms and in jurisprudence, for example, provide a potential bulwark against biased application of Canada’s new self-defence law by inhibiting its overtly racist or sexist application.[23] The fact that Canadian judges are appointed rather than elected may insulate them from the pressures placed on Florida judges to be tough on crime so as to reassure fearful voters and win re-election. Perhaps our faith in the reasonableness of Canadian juries, compared to Floridian juries, will be vindicated. Restrictive Canadian gun laws could help offset the surge of homicides following the adoption of Florida’s Stand-Your-Ground law.[24] These safeguards are important, but they may not be enough under the pressures of Canada’s own existing or future climates of fear.

Parts I and II of this paper set forth an analysis of the genesis and politics of expanding self-defence laws in the US and Canada in key historical moments from the nineteenth century to today. This analysis reveals how competing theoretical justifications for self-defence based on the preservation of life, on the one hand, and the protection of property, liberty, and honour on the other emerge or recede in shifting historical and political contexts in both countries. Next, Part III unpacks key conceptual features of the new self-defence law—for example, classification as a justification or excuse, distribution of objective and subjective elements, placement of fixed preconditions and flexible standards, and distribution of burdens and decision-making authority—that render Canada’s self-defence law arguably more vulnerable to bias or unprincipled application than Florida’s self-defence law. Part IV examines recent jurisprudence, including R. v. Cormier, R. v. Stanley, and R. v. Khill,[25] revealing that Canadian self-defence arguments are already expanding in unforeseen ways. Finally, Part V considers potential safeguards within Canada’s legal and political culture that may temper the risk but warns that they may not be sufficient.

I. The Genesis of Expanded Self-Defence in the US and Florida

A. The American True Man from the Nineteenth Century to the 1960s

Canadian and US laws of self-defence are based on the English common law, which granted the Crown primary responsibility for defending subjects from criminal threats.[26] Under this system, subjects were legally required to resolve their disputes peacefully. Nonetheless, a subject in a public place had a narrow right to defend himself when he was faced with a threat of death or great bodily harm, the threat was imminent, and his response was both necessary and proportionate.[27] The subject was required to “retreat, to the wall behind their back” before meeting force with force, unless retreating posed a lethal risk.[28] According to Blackstone:

And though it may be cowardice, in time of war between two independent nations, to flee from an enemy; yet between two fellow subjects the law countenances no such point of honour ... The party assaulted must therefore flee as far as he conveniently can, either by reason of some wall, ditch, or other impediment; or as far as the fierceness of the assault will permit him.[29]

The so-called “castle doctrine” emerged in 1604. It permitted a man to use lethal force if attacked in his home on the logic that “the house of every one is his castle.”[30] According to Edward Coke, the homeowner could assemble his friends and neighbours to defend his house, but was prohibited from leaving the house to defend himself against violence with force.[31] Whereas the common law doctrine of self-defence was grounded in the sanctity of human life, the castle doctrine provided a narrow, parallel doctrine grounded in property rights (including a man’s woman and children), liberty (freedom from unlawful interference in the home), and honour (a man’s home is his castle).[32] Because white men were the primary holders of real property at the time, the castle doctrine effectively provided them with special privileges to use defensive force not available to most women and non-white individuals.[33]

Scholars in the US have linked the erosion of the duty to retreat inherited from English common law to resistance to new citizenship rights and economic opportunities for African-American men in the wake of the Civil War and “anxieties around white masculine vulnerability.”[34] Anti-federalist suspicion and “threatening” Indigenous people at the frontier provided additional impetus for a white male ethos of “do-it-yourself” (DIY) security and the right to bear arms.[35] Resurrecting strands of eighteenth century jurisprudence within English common law that had softened the innocent victim’s duty to retreat,[36] a series of US post-bellum cases in the late nineteenth century expanded the right of self-defence outside the home.[37] These cases muddied the underlying purpose of self-defence so that it was no longer clear whether self-defence was primarily about protection of human life or protection of property, liberty, and honour. Erwin v. State was a key precedent, with the court holding that “a true man, who is without fault, is not obliged to fly from an assailant, who, by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm.”[38] The “true man” in this legal and historical context was invariably white.[39] According to historian Caroline E. Light, “the elasticized boundaries of home” today mean that “the white castle might potentially be anywhere, including a public street.”[40] Homicide rates in the US, especially against African Americans, increased dramatically.[41]

Self-defence and defence of others, particularly white women in the southern US, became the justification for a wave of black lynchings in the late nineteenth and early twentieth centuries.[42] The expansion of civil and political rights to African Americans triggered a populist backlash[43] that was reflected in the jurisprudence of the day. While white men who raped black women could be expected to be acquitted in southern courts, black men accused of raping white women were almost always found guilty.[44] Blacks arrested after killing rapists and lynchers were denied the defence (and more often any legal process), while white killings of black individuals were deemed justified.[45] When black civil rights activists who had been refused police protection began to carry weapons for self-defence in the 1960s, conservative leaders, including California Governor Ronald Reagan, pushed for and won gun control legislation.[46] Even though progressives in the women’s rights movement and civil rights movement made strides in attaining equal protection under the law in the decades that followed, those strides were hampered by the narrative of the propertied white man defending his castle, a narrative that came to a head in Florida in 2005.

B. The Modern Stand-Your-Ground Innovation

In 2005, Florida expanded the bounds of self-defence by enacting its stand-your-ground legislation.[47] Florida’s reform was the first step in a broader expansion of self-defence across the US, spearheaded by the National Rifle Association (NRA), the conservative American Legislative Exchange Council (ALEC), and pro-gun conservative politicians in the wake of the 9/11 attacks, when anxiety about government’s ability to provide Americans with protection from dangerous strangers (foreign and domestic) ran high.[48] The precipitating event for legislative change in Florida occurred in 2004, where four hurricanes intensified (ultimately false) fears of widespread looting.[49] When a stranger attempted to force his way into the mobile home where James Workman had moved his family after Hurricane Ivan destroyed his house, Workman shot and killed him. It took three months to clear Workman of wrongdoing.[50] Even though the deceased intruder turned out to be an emergency worker, the incident galvanized Florida State Representative Marco Rubio and Governor Jeb Bush to pass legislation expanding self-defence[51] and prioritizing protection of property, liberty, and honour.

Prior to 2005, unless a Floridian was “attacked in his home by a person not having an equal right to be there,” he had a duty to “retreat to the wall” if he could do so in absolute safety; this duty was consistent with the duty to retreat, typical of self-defence laws in common law jurisdictions.[52] Stand Your Ground circumscribed Florida’s common law[53] “retreat to the wall” requirement, thereby expanding the right to use deadly force if certain bright-line conditions were met: a person is not the initial aggressor, not engaged in an unlawful activity, and is in a place where they have the right to be.[54] When these conditions are met, a person is allowed to:

stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.[55]

The law also includes new presumptions in favour of the accused concerning “reasonable fear” when the accused claims defensive force within a dwelling.[56] “Dwelling” is expansively defined and includes occupied motor vehicles.[57] For police to arrest a person for using or threatening to use force, there must be probable cause that the force used or threatened was unlawful—that is, the person was not lawfully standing their ground.[58] Under Stand Your Ground, the accused is entitled to a pre-trial evidentiary hearing where they will be deemed immune from criminal prosecution and civil liability if they convince a judge by a “preponderance of the evidence” that they acted in self-defence or to prevent the commission of a forcible felony.[59]

Florida’s law became the national model.[60] Through legislation or jurisprudence, at least thirty-three states have now eliminated the duty to retreat and expanded the ambit of permissible DIY security.[61]

II. The Genesis of Expanded Self-Defence in Canada

Like Florida, Canada inherited Britain’s self-defence common law rules, including necessity, proportionality, the duty to “retreat to the wall”, and the castle doctrine. Yet, until Canada’s 2012 innovation, broader, more flexible self-defence in Canada remained more or less rooted in the preservation of human life. Between 1892 and 2012, incremental expansions occurred when Parliament attempted to simplify the law and when the judiciary attempted to tweak it to account for the range of reasonable human responses to force and the threat of force. Before 2012, deadly force was never permitted to defend mere property.[62]

A. Codification

Discussions about codifying Canadian criminal law took place in the late nineteenth century as the dominion was extending legal authority north and west into Indigenous territory,[63] settlers were contending with local resistance, and armed US outlaws were infiltrating from the south.[64] Though Prime Minister John A. Macdonald supported a more permissive Canadian gun culture,[65] Canadian commenters cautioned against the post-bellum US self-defence expansion and the “true man” rationale never really took hold in the Canadian dominion.[66]

Canada’s 1892 self-defence codification, like the 2012 innovation, was meant to simplify and clarify the law. Prime Minister Macdonald did not push for a unified Criminal Code of Canada to entrench a Canadian “true man” ethos. Rather, his actions were primarily in accordance with the nineteenth century English drive toward codification and to remedy the uneven reception of English law across the young country.[67] Canada’s first Criminal Code did reflect honour-based conceptions in parts, but this aspect was more an incident of drafting history rather than a reflection of a distinctive Canadian “true man” ethos.[68]

English codification enthusiast Sir James Fitzjames Stephen drafted the precursor to Canada’s first Criminal Code in 1878 with the goal of eliminating excessive technicality.[69] Stephen’s 1878 draft contained simple, straightforward self-defence provisions that embodied Blackstone’s conception of necessity, proportionality, duty to retreat, and the castle doctrine.[70] In 1879, however, a Royal Commission was tasked with a redraft. The Royal Commission reconceived the project, seeking to create a more comprehensive code that would render the law knowable to the general public in conformity with the principle of legality.[71] While the commission’s 1879 provisions on self-defence purported to be grounded in the same principles as the prior version,[72] they were more elaborate,[73] containing a host of technical exceptions and specifications of how the principles of necessity, proportionality, and retreat might apply differently depending on what was being defended, who was the initial aggressor, whether the accused intended to cause death or grievous bodily harm, and like considerations. The British Parliament rejected both the 1878 and 1879 draft criminal codes, but Canada’s Parliament adopted the 1879 Royal Commission draft, including its elaborate self-defence provisions.[74]

The 1892 Criminal Code explicitly required retreat only if the accused was the initial aggressor, resurrecting a common law distinction from the Middle Ages that had not been part of Stephen’s 1878 draft.[75] This distinction reflected the principle that an active provocateur bears some responsibility for the violence that ensues. Furthermore, it was considered to legitimize cowardice and be an insult to a man’s honour for the law to demand retreat from a violent encounter that was not of his own making.[76]

This formulation survived a 1955 revision, which compounded the complexity of the 1892 Criminal Code. The 1955 revision broke down existing self-defence and defence of property provisions into paragraphs and subparagraphs in line with modern drafting techniques, but without careful regard for the integrity of the underlying scheme.[77] Lawyers, judges, academics, and even the Law Commission of Canada excoriated these provisions for being overly complicated and incoherent,[78] with one prominent scholar going so far as to call them “the most confusing tangle of sections known to law.”[79] Different provisions applied depending on whether the accused was the initial aggressor or provoked the assault,[80] whether death or grievous bodily harm was intended by the accused,[81] and whether death or grievous bodily harm in fact resulted from the claimed act of self-defence.[82]

B. Judicial Convergence Around a Soft Retreat Requirement

The Supreme Court of Canada eventually came to acknowledge the futility of imputing a clear legislative intent to the scheme as a whole given the “confused nature” of the provisions.[83] A jurisprudence beset with technicalities, acknowledged absurdities, and non-literal interpretations emerged as judges did their best to reconcile text with purpose and principle.[84] Contrary to the text of the legislation, the judiciary read in a qualified retreat requirement and Canadian self-defence remained rooted in the preservation of human life.[85]

Although the language of section 35 of the Criminal Code seemed to suggest that passive victims could stand their ground, Canadian courts interpreted the law to include a “soft” retreat requirement in all self-defence claims.[86] Retreat became a factor—sometimes a decisive one[87]—in determining whether an accused reasonably apprehended an assault or whether resort to force was necessary or proportionate.[88] In accordance with received common law principles, retreat could only be considered where it was a realistic option and, under the castle doctrine, no one was expected to retreat from their home.[89] In time, the statutory retreat requirement for initial aggressors was softened.[90] This Canadian, judge-made “soft retreat” requirement was animated less by the true man ethos and more by the preservation of human life, with due regard for the limited capacity of a victim of attack to live up to idealistic conceptions of the reasonable person.[91]

C. Softening of the Imminence Standard and Contextualization of the Reasonable Person

Beginning in the 1980s, a new climate of fear emerged as the primary impetus for law reform: the home. Feminists argued that it was dangerous for battered women to behave like reasonable men when threatened with a lethal attack by an intimate partner and that self-defence should be reformed to account for the accused’s circumstances.[92]

A seminal expansion of Canada’s self-defence law occurred in 1990, driven by the judiciary, not Parliament. In R. v. Lavallee the Supreme Court of Canada expanded opportunities for justifiable homicide and DIY security in the home.[93] In that case, the defendant Lyn Lavallee shot her abusive spouse Kevin Rust in the back of the head as he left her bedroom. Rust had just beaten Lavallee and threatened to come back and kill her later if she did not kill him first. But, here, rather than designating a woman’s home as her castle, the justices expanded Canadian self-defence law by interpreting the “reasonableness” of deadly force in light of the defendant’s subjective experiences.[94] Justice Bertha Wilson, relying on expert testimony to dispel a number of pervasive myths[95] about battered women, wrote:

If it strains credulity to imagine what the “ordinary man” would do in the position of a battered spouse, it is probably because men do not typically find themselves in that situation. Some women do, however. The definition of what is reasonable must be adapted to circumstances which are, by and large, foreign to a world inhabited by the hypothetical “reasonable man.”[96]

Lavallee overruled jurisprudence which had held that the imminence requirement that had been judicially read into the statutory element of “reasonable apprehension of death or grievous bodily harm” should be interpreted strictly, such that the assault must be underway at the time of the alleged act of self-defence—even when the accused had been abused by her spouse over a long period of time and he had threatened to kill her family members if she tried to leave him.[97] Expert testimony concerning the ability of an accused to perceive danger from her mate was admissible in relation to the issue of whether she reasonably apprehended death or bodily harm.[98] Expert testimony shedding light on why an accused failed to exercise what the trier of fact might view as possible avenues of escape was also admissible.[99] Relaxing the imminence standard acknowledged the impossible position of women judged by a male-oriented test who are more likely to be harmed by waiting until an attack is underway.[100]

The Supreme Court of Canada prioritized the right to life of women and their spouses over property rights; however, this prioritization did not serve as the rationale for Lavallee’s acquittal. The justices acknowledged that for many women, the home is a climate of fear that the state is not fully capable of securing. At the same time, legal scholars criticized the Supreme Court for encouraging women who kill to depict themselves as pathological, subordinated victims[101] while men would be acquitted for defending their castle.

Lavallee galvanized a broader trend in Canadian criminal law to contextualize the objective reasonableness standard in light of the accused’s characteristics and history—the “contextual objective” or “individualized objective” approach.[102] Acknowledgement of new climates of “reasonable” fear served as impetus to incrementally expand the law of self-defence in the 1990s and 2000s. In R. v. McConnell, for example, the court factored in expert evidence about prison environment in determining whether an accused reasonably feared a threat from other inmates.[103]

Lavallee did not delineate to what extent judges and juries should incorporate the accused’s characteristics, situations, or life experiences into the reasonable person standard. Inviting expert evidence to contextualize the reasonable person was not intended to extend the defence to the benefit of those who harbour racist, sexist, or homophobic views, but the innovation nevertheless created new opportunities for biased contextualization. Had Lavallee’s contextual objective approach been available to George Zimmerman after he killed Treyvon Martin in Sanford, Florida in 2012, for instance, Zimmerman, like Bernie Goetz—New York’s notorious subway shooter—might have made use of evidence about his own experiences of “white victimization”, possibly even calling on experts to testify on his behalf.[104] Such experiences could likewise undergird a claim for a relaxed imminence standard on the part of firearm-carrying “true men” in climates of fear who kill black or Indigenous youth rather than retreat, then claim that their fear was reasonable in the circumstances. Lavallee improved Canadian law by providing an important acknowledgement of the varied experiences of people who kill in self-defence,[105] but it also expanded the availability of self-defence to accused individuals and made the law more vulnerable to abuse.

D. Canada’s Lucky Moose Law (2012)

A 2009 shoplifting incident at the Lucky Moose Food Mart in Toronto’s Chinatown provided the next major impetus for legal change—this time driven by Parliament.[106] Store owner David Chen’s security cameras recorded serial shoplifter Anthony Bennett stealing a tray of flowers and fleeing on his bicycle.[107] When Bennett returned to the Lucky Moose an hour later, Chen and two employees apprehended him and locked him in a delivery van until the police arrived.[108] Bennett pleaded guilty to shoplifting, but pressed charges against Chen for assault, forcible confinement, kidnapping, and possession of a concealed weapon (a boxcutter).[109] Chen argued his actions had been a lawful citizen’s arrest but faced a legal hurdle. Under existing law, citizens could only arrest a suspect if they discovered the suspect committing a crime or immediately afterward.[110] Bennett’s crime had occurred an hour before Chen captured and confined him.[111] At trial, Judge Ramez Khawly found that Bennett’s crime was ongoing because he returned to the store to steal again, and acquitted Chen.[112] Chen was depicted in the national press as a law-abiding Chinese grocer defending his store against a serial offender, not a George Zimmerman or Bernie Goetz, despite the fact that Bennett was African-Canadian.[113]

Chen’s case generated an outpouring of public support for citizens’ rights to protect their property with political repercussions. With a federal election looming, Liberal MP Joseph Volpe, NDP MP Olivia Chow and Conservative MP Rob Nicholson—the Minister of Justice—each introduced bills intended to expand citizen’s arrest rights.[114] The Lucky Moose incident coincided with a Conservative push, revealed in a leaked internal document that identified “very ethnic” swing ridings (including Chinese ridings in the Greater Toronto area) which, if won, could give the Conservatives a majority government.[115] The leaked “very ethnic” strategy—which ultimately resulted in the resignation of the staffer who named it—proposed soliciting donations from Alberta’s stable, conservative riding associations to fund sophisticated polling and micro-messaging in key swing communities in the Greater Toronto Area.[116] David Chen, a folk hero in key swing communities, was a valuable political asset.

DIY defence of property was an issue with broad appeal to Chinese and South Asian shopkeepers in the Greater Toronto Area and also to rural farmers in Western Canada.[117] Conservative pollsters, between 2006−2011, discovered that “very ethnic” shopkeepers and rural farmers shared a number of preferences: they were socially conservative, traditional when it came to family, religious (often Christian), and entrepreneurial.[118] Yet, Western Canadian rural support for DIY security was fueled by additional factors, most significantly a Canadian variation of the grassroots populism[119] surging in the US and propelling the adoption of stand-your-ground laws across the nation.[120] Like populism in the US, Canadian populism was most often attributable to a white ethnic majority losing its demographic dominance, a sharp rise in immigration changing cultural communities, increasing publicity of European injustices against Indigenous communities, and “[n]ews media and political personalities who bet big on white backlash.”[121] The Conservative government’s parallel initiative to abolish the long-gun registry as it pushed to expand the availability of DIY security was a direct appeal to its rural, “old stock”, populist base.[122]

The Lucky Moose incident provided an opportunity for the Conservative government to navigate urban/rural and visible minority/white preferences, attract the support of key constituencies, and potentially win a majority government. The strategy was successful, and the Conservatives won a majority government in the 2011 election.[123]

1. Beyond Citizen’s Arrest

Prime Minister Stephen Harper instructed the Department of Justice to consider expanding the Criminal Code provisions on citizen’s arrest, but also on self-defence and defence of property. Draft Bill C-26 incrementally modified the citizen’s right to arrest by replacing the old “immediate response” requirement with a new “reasonable time after the offence is committed” requirement.[124] When the draft bill was debated in Parliament, MPs from all parties expressed support. Concerns about emboldening vigilantes,[125] providing non-professional private security personnel new powers,[126] “reliv[ing] the wild west,”[127] and teens beaten with baseball bats for snatching soda from convenience stores were left unaddressed in the final draft.[128] Liberal MP Judy Sgro made a comparison to Stand Your Ground when she told Parliament, “[w]e do not want to have happen what has happened in Florida, where people become emboldened, whether they have a gun or not, to think they can take the law into their own hands.”[129] Joseph Volpe was troubled by the ambit of the proposed legislation and reminded his colleagues, “[w]e were essentially trying to address the issue of a citizen’s right to arrest, period, pure and simple.”[130] Conservative, Liberal, and NDP MPs nevertheless supported the final bill, which passed with overwhelming support.

Minister of Justice Rob Nicholson introduced the newly adopted bill in front of the Lucky Moose, with Chen standing beside him.[131] Nicholson said, “[v]ictims of crime should not be revictimized by the criminal justice system when they attempt to protect their property.”[132] For professors Anita Lam and Lily Cho, the Chen case “reveals the ways in which contemporary citizenship depends on continuing racial exclusion despite being imbued with ideas of progressiveness and modernity.”[133] Through their critical postcolonial lens, the Lucky Moose saga reads less as a tale about Canada’s multi-ethnic identity rather than as the white majority welcoming a “model minority” into the fold.[134]

Volpe was right that Lucky Moose did more than incrementally expand citizen’s arrest. While Canadians were focused on Toronto Chinatown’s “vigilante grocer,” Bill C-26 subtly expanded Canada’s concept of self-defence and defence of property. The same year Lucky Moose was adopted, the Conservative government used their majority in Parliament to abolish the long-gun registry, thereby expanding the right of self-defence while deregulating gun ownership.[135]

2. Self-Defence Under Lucky Moose

The Department of Justice describes the new self-defence provisions as essentially a simplification and clarification of existing law.[136] Indeed, the law is simpler and certain features of the old law did survive more or less unchanged. These include the first two requirements that the accused reasonably perceived the relevant use of force, and subjectively acted with a defensive purpose and not, for example, to vindicate some pre-existing grudge.[137] A major innovation, however, comes in the third required element: that the accused’s acts were reasonable in the circumstances. This element has been described as the heart of Canada’s new law of self-defence.[138] Mandatory criteria that had to be satisfied under the old law for self-defence to succeed, notably necessity and proportionality, were shifted to a non-exhaustive list of factors for judges and juries to weigh when applying the overall reasonableness-of-the-act standard.[139] The vestigial retreat requirement contained in section 35 of the pre-2012 Criminal Code was completely eliminated.[140] As discussed, case law developed under the previous legislation had eased these mandatory requirements with exceptions and qualifications, so the change was not as abrupt as it appears when comparing old and new legislation on their face. Yet, according to Professor Alan Brudner, Parliament replaced “a subtly nuanced law whose detailed provisions satisfy constitutional requirements with a blunt and non-committal law whose very vacuity was probably unconstitutional.”[141] Certainly, by making the unstructured “reasonableness in the circumstances” standard the core of self-defence, Canada’s Parliament expanded the availability of the defence[142] and increased the discretion of police, prosecutors, judges, and juries applying the law. In addition, as will be discussed further below, this change arguably moved proportionality and necessity from questions of law, interpreted according to text and legal principle, to factual determinations.

Other changes in the new law are perhaps less controversial, but bear mention because they expand the availability of the defence. Self-defence can now be invoked in response to any threat of force used against an accused, not just an assault.[143] It may now be used to exculpate in relation to a greater variety of offences, for example, if an accused stole a vehicle to avoid force.[144] The new section 34(1)(a) extends to defence of others, where the previous legislation only permitted defence of self or of a limited class of others under the accused’s protection.[145] Finally, as discussed further below, new legislation dropped the language of justification which is typical of common law and statutory definitions of self-defence, arguably expanding self-defence to include conduct that is not justifiable but merely excusable.[146]

3. Defence of Property Under Lucky Moose

The new defence of property provision departs further still from previous and prevailing models. Section 35 essentially provides a defence for someone who reasonably believes property in which they are in peaceable possession of is being threatened, so long as the act they commit is reasonable in the circumstances.[147] There are no enumerated factors to guide the reasonableness evaluation. Unlike the legislation it replaces, section 35 makes no distinction between the kinds of force that can be used to protect various forms of property and homes. Once again, the language of necessity and justification present in the pre-2012 legislation is omitted. Canada’s new defence of property provision has been criticized for raising the unsettling possibility that Lucky Moose, like Florida’s Stand Your Ground, might sanction the intentional use of deadly force merely to protect property.[148] Courts interpreting the pre-2012 legislation had held that it “cannot be reasonable to kill another merely to prevent a crime which is directed only against property.”[149] Yet, by deleting the necessity requirement altogether, and without clarifying the role of prior jurisprudence, Parliament created unprecedented space for an individual who intentionally kills someone he thought was stealing his car stereo or who drove onto his farm uninvited to win an acquittal if police, prosecutor, judge, or jury considers the homicide “reasonable in the circumstances.”[150]

III. Stand Your Ground and Lucky Moose: a Conceptual Comparison

Florida’s Stand Your Ground and Canada’s Lucky Moose are ground-breaking expansions of received common law, but their conceptual features are quite different. Comparing the conceptual underpinnings of Stand Your Ground and Lucky Moose in relation to: 1) justification and excuse; 2) objective and subjective elements; 3) fixed preconditions and flexible standards; 4) whether the burden of proof is on the prosecutor or the accused; and 5) the locus of decision making, illuminates the potential expansiveness of Lucky Moose, as well as its capacity to erode the normative grounding of self-defence. In basic ways, Lucky Moose is potentially more permissive of DIY security than Stand Your Ground, while at the same time creating unprecedented space for police, prosecutors, judges, and juries to infuse the defence with their own preconceived notions of “reasonableness.”

A. Justification and Excuse

Self-defence is classified as a justification defence in most jurisdictions, not an excuse.[151] Justifications generally point to some moral or public interest that supersedes the reasons for criminalizing the offence.[152] The accused is deemed to have acted rightly in defending themselves rather than being excused as a “concession to human frailty.”[153] Criminal law scholars debate whether a deed is justified because it prevents more harm than it causes or because the reasons for acting were right.[154] Whether a legal scholar focuses primarily on the deed itself or the reasons for that deed, the prevalent view is that the common law defence of justification, which includes self-defence, contains built-in necessity and proportionality requirements.[155] According to Paul Robinson, “[a]ll justification defenses have the same internal structure: triggering conditions permit a necessary and proportional response.”[156]

Florida’s Stand Your Ground and the pre-2012 Canadian law are explicitly labelled justifications in the text of the legislation,[157] thereby requiring necessity and proportionality as elements. Lucky Moose, in contrast, removes the language of justification from the legislation and replaces it with the uninformative phrase “not guilty of an offence,” which makes no distinction between justification, excuse, or any other ground for excluding liability.[158] When it comes to defence of person, necessity, and proportionality are demoted from common law requirements (however flexibly and contextually interpreted) to factors to be weighed alongside others in a non-exhaustive list.[159] Lucky Moose’s defence of property provision does not mention necessity or proportionality at all.

According to Kent Roach, Lucky Moose’s bleeding of justification into excuse “is consistent with recent developments in self-defence especially in the context of battered women.”[160] Some authors contend that since the 1990s the judiciary’s sympathetic response to battered women who kill their spouses has transformed self-defence into an excuse on the basis that battered defendants were acting in a subjectively reasonable (but objectively unreasonable) way when they killed their partners.[161] Another way of understanding Lavallee and the line of “battered woman” cases that followed that is more consistent with the language of justification in the old law is that self-defence was no concession to human frailty. Rather, these decisions acknowledged that the requirements of necessity and proportionality should be interpreted and applied in light of the accused’s circumstances.[162]

Though the justification/excuse distinction is currently out of favour among an increasing number of Canadian criminal law scholars who argue that it produces more smoke than light,[163] the excision of the principle of justification from Lucky Moose risks rendering the new law more expansive than Stand Your Ground, a classic justification defence with necessity and proportionality limitations.

If Lucky Moose instigates a paradigm shift from justification to excuse, it could expand self-defence unpredictably as courts broaden its availability from those who act rightly, to those who act wrongly but forgivably.[164] Treating self-defence as a concession to human frailty rather than precluding wrongfulness altogether creates space to forgive the battered woman who acts unreasonably because of trauma, but it also risks putting racist, sexist, and homophobic triggering conditions back into play in Canadian law. It is, after all, a basic principle of criminal law—and a principle of fundamental justice under section 7 of the Charter—that people not be punished for morally involuntary conduct.[165] Whether this principle includes conduct based on unreasonable or mistaken beliefs is a matter of controversy among criminal law theorists.[166] If an individual genuinely feared for their life and genuinely lost control when encountering black or Indigenous youth, the new law could arguably provide an excuse for their actions. Yet, racist (unreasonable and/or mistaken) beliefs would certainly preclude a justification defence. This potential outcome is especially so when the reasonable person is contextualized to incorporate key aspects of the accused’s circumstances (for example, past history of victimization) into the evaluative benchmark.[167]

B. Objective and Subjective Elements

Stand Your Ground and Lucky Moose both retain the basic common law distribution of objective and subjective elements: a reasonable perception of force or threat of force (subjective perception of the accused, objectively verified), a defensive purpose (accused’s subjective state of mind), and the accused’s actions must be reasonable (objective standard).[168] Yet key differences between the two laws render Lucky Moose more tolerant of the idiosyncrasies of the accused, thereby bringing its objective standard closer in line with the subjective experiences of the accused. Where Stand Your Ground provides that “a person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary,”[169] Canada’s law provides that “a person is not guilty of an offence if ... the act committed is reasonable in the circumstances.”[170]

Stand Your Ground’s reasonableness standard mentions no circumstances that judges or juries must factor in when evaluating whether the accused’s defensive response was justified.[171] Stand Your Ground’s objective standard has, however, been made somewhat more accommodating of lived experiences through judicial interpretation. This accommodation is captured in the Supreme Court of Florida’s model jury instructions.[172] When it comes to the reasonableness of the accused’s perception of the threat, Florida judges can instruct juries that they may take into account “threats or prior difficulties” with the victim and the “violent and dangerous” reputation of the victim, if it is known by the accused.[173] When it comes to the reasonableness of the defensive response, judges can instruct juries that they may take into account “the relative physical abilities and capacities of the defendant and (victim).”[174] This contextualization is not nearly as expansive as Lucky Moose’s non-exhaustive list of circumstances for juries to consider in assessing the reasonableness of the accused’s defensive response, which includes, among other factors,

[T]he size, age, gender and physical capabilities of the parties to the incident ... the nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat ... any history of interaction or communication between the parties to the incident.[175]

Through section 31(1)(c), Lucky Moose provides far more leeway than Stand Your Ground for juries to factor in the lived experience of the accused when assessing the reasonableness of their actions. It leaves juries to determine whether to factor in characteristics of the accused such as diminished intelligence,[176] an anxious, paranoid and distrustful personality caused by a medical syndrome,[177] and potentially—and dangerously—a heightened sense of fear of dangerous strangers resulting from prior victimizations, real or imagined.[178]

C. Fixed Preconditions and Flexible Standards

Stand Your Ground is renowned for dispensing with the common law’s predefined retreat requirement. What is less known is that under Stand Your Ground, retreat is still a requirement in specified circumstances. Other bright-line, predefined threshold requirements that no longer exist in Canada under Lucky Moose are also retained in the Florida law. The elimination of so many fixed preconditions for self-defence is novel in the common law world and renders Lucky Moose more expansive than Stand Your Ground in a number of respects. However imperfect Florida’s formalistic threshold requirements are, they provide a bulwark against capricious application—no longer the case in Canada. This divergence is demonstrated by the laws’ differing approaches to aggressors, imminence, and defence of property.

Stand Your Ground, like Canada’s pre-2012 law,[179] retains separate regimes depending on the initial aggressor in a confrontation. An initial aggressor cannot rely on Stand Your Ground—they must have “exhausted every reasonable means of escape,” or retreated in good faith, indicating clearly to the assailant that they wish to withdraw.[180] In contrast, the new Canadian law contains no fixed retreat requirement whatsoever, not even for the initial aggressor in a confrontation. Instead, “the person’s role in the incident” is another fluid factor to be considered.[181] Similarly, self-defence is not available to a Floridian “attempting to commit, committing, or escaping after the commission of, a forcible felony.”[182] Lucky Moose contains no comparable predefined threshold rules. Rather, sections 34 and 35 rest entirely on an ex post facto “reasonableness in the circumstances” standard.

Though not as stark a prerequisite as retreat, imminence is another traditional self-defence threshold requirement retained in Stand Your Ground but demoted in Lucky Moose. The imminence requirement was not explicit under Canada’s pre-2012 self-defence law, but imminence had been read in as a fixed requirement by courts,[183] and remained a requirement after Lavallee, though it was relaxed. Under Stand Your Ground, deadly force is only justified if the defender reasonably believes that death or great bodily harm is “imminent.”[184] The Department of Justice maintains that section 34 essentially codifies Lavallee,[185] for example, by ensuring that any evaluation of the reasonableness of an accused’s response to a threat accounts for the size, age, gender, and physical capabilities of the parties, as well as any history of abuse.[186] But where Lavallee called for a contextualized understanding of criteria such as the impossibility of retreat or of the proportionality of the response,[187] section 34 eliminates these as requirements and turns them into “considerations” to be weighed against one another in an overall reasonableness analysis. Scholarly critiques of the imminence requirement in self-defence maintain that imminence “carries undeclared meanings,” operating “as a proxy for any number of other factors—for example, strength of threat, retreat, proportionality, and aggression”—thereby rendering the law more contingent than previously assumed.[188] By explicitly making “imminence” optional rather than clarifying its elements, Lucky Moose risks destabilizing Canadian self-defence law even further, exacerbating the contingency that scholars criticized under the traditional formulation.

Stand Your Ground has been criticized for departing from the bright-line common law rule that deadly force should not be used to protect mere property.[189] There are numerous reports of outrageous cases where Floridians are set free after chasing down and killing people they suspect are stealing property (for example, a car stereo, a wave runner) or robbing nearby homes.[190] Stand Your Ground makes it easier to justify the use of deadly force in the home and also to prevent the commission of a forcible felony, which, under Florida law, includes robbery and burglary.[191]

By removing explicit reference to proportionality and removing the distinctions between the kinds of force that can be used to protect various forms of property—which had been present in the 1892 and 1955 Criminal Codes—[192]Lucky Moose risks departing further still from the goal of preserving human life. While it is arguable that disproportionate force is never reasonable, or that lethal force is never reasonable to protect mere property, it is unclear whether juries will reach such a conclusion. As such, Roach’s paper warns that Lucky Moose opens the unsettling possibility “that seriously injuring or even killing a person solely to defend property could be considered to be a valid defence of property under section 35.”[193] The conspicuous absence of proportionality language in section 35—versus section 34 where proportionality is listed as a factor for juries to consider—provides defendants a persuasive argument that when it comes to defence of property, Parliament deliberately left proportionality out.

D. Burden of Proof

Lucky Moose has come into force in a criminal justice framework that is already more favourable to defendants than Florida’s in relation to the burden of proof. Critics of Stand Your Ground condemn a proposed Republican-sponsored modification that would flip the burden of proof in self-defence cases by requiring the prosecution to prove that a defendant who used deadly force instead of retreating from an attack was not behaving reasonably.[194] Critics say that this extra procedural hurdle for the prosecution will make it easier for firearm-carrying “true men” who kill and get off scot-free.[195] While Canadian law requires defendants to demonstrate an “air of reality” before a defence can be considered by the jury, it does put the ultimate burden on the Crown to disprove self-defence “beyond a reasonable doubt.”[196] This practice, while firmly rooted in the constitutional protection of the presumption of innocence,[197] does have the effect of making it more difficult in this respect for Canadian prosecutors over Floridian ones to secure convictions against defendants who claim self-defence.

E. Locus of Decision Making

Stand Your Ground and Lucky Moose subtly shape and redistribute decision-making authority in ways that break from common law tradition. A crucial element of self-defence, and criminal law defences more generally, is “their deep connection to the power of certain individuals to make authoritative decisions about when they are justified to do what the criminal law generally prohibits.”[198] Conduct is legally justified only if the appropriate person or people—the legislature, judge, jury, prosecutor, or the accused themselves—validly decide that it’s justified.[199]

Procedural provisions in Florida’s law shift decision-making authority downward from trial courts to police and judges in pre-trial immunity hearings. A person who uses or threatens force and claims self-defence under Stand Your Ground “is justified in such conduct and is immune from criminal prosecution and civil action.”[200] The repercussion is that the police may not arrest a person invoking Stand Your Ground without “probable cause” that the force that was used or threatened was unlawful (not defensive).[201] Thus, Florida law grants the police special authority to dispose of the case at the scene of the crime. If the police nevertheless press charges, rather than raise self-defence as an affirmative defence to be decided by the jury at the end of the trial, an accused can claim immunity at any stage of the process and must be granted a special pre-trial immunity hearing.[202] If, at this hearing, the accused proves by “a preponderance of the evidence” that force or threat of force was defensive, their immunity is established and there is no trial.[203]

Where Canadian judges used to control the application of necessity and proportionality requirements in concrete cases, Lucky Moose puts the locus of decision making squarely in the hands of juries. As discussed, the heart of Lucky Moose is the requirement in sections 34(1)(c) and 35(1)(d) that the act committed must be “reasonable in the circumstances.” Roach points out that “the reasonableness of any particular act will be seen as a prototypical question of judgment that is associated with jury determinations.”[204] Professor Boaz Sangero, discussing jurisdictions that have similarly collapsed necessity and proportionality requirements into a global reasonableness assessment, cautioned that such a move “in effect implies the relinquishment of any sort of significant guidance by the legislator,” and is liable to mistakenly suggest that the reasonableness of defensive force is a factual question rather than a legal one.[205]

F. An Unprincipled Revolution?

There is a rich literature on the distinction between rules, standards, and principles.[206] All three are intended to influence the behaviour of private citizens, but they also distribute decisional authority in different ways. The distinction between rules and standards hinges on the extent to which “efforts to give content to the law are undertaken before or after individuals act,” with rules specifying in advance whether certain actions will be penalized, and standards delegating to courts the authority to make the determination afterwards.[207] Principles, like standards, are applied to evaluate actions after the fact, but unlike rules and standards, principles allow the “policies, values, and rationales animating the law ... to shine through” and shape outcomes.[208]

The move away from rigid rules and toward more contextually-sensitive tests is a trend in Canadian criminal law,[209] as it has been in other areas of Canadian law.[210] Professor Lisa Dufraimont tracks a move from rules to principles in the Canadian law of evidence that is in some ways analogous to the move from rules to standards in the law of self-defence. She maintains that adopting a principled (versus a rule-based) approach in the law of evidence has the potential to bring evidence law closer to “its underlying policies.”[211] According to Dufraimont, evidentiary rules are “prone to being applied mechanically and acontextually,” while evidentiary principles are “more capable of flexible and contextual application.”[212] She argues that wholeheartedly adopting a principled approach, rather than applying principles to pre-existing evidentiary rules, will also reduce unhelpful complexity.[213]

In replacing the old rule-based law of self-defence and defence of property with sections 34 and 35, Parliament was responding to a similar problem in a similar way. The old Canadian law of self-defence, like the old law of evidence, was excessively complex and rigid rules were often applied in ways that clashed with their underlying rationales.[214] According to the Department of Justice, “[t]he intent of the new law is to simplify the legislative text itself, in order to facilitate the application of the fundamental principles of self-defence without substantively altering those principles.”[215] Instead of undergoing a “principled revolution” however, the law of self-defence became “standardized”—bright-line rules were replaced by flexible standards.

Unfortunately, the non-exhaustive list of factors in section 34(2) for judges and juries to consider when determining whether a defensive act met the “reasonable in the circumstances” standard replaced one type of complexity with another. Where judges and juries had previously struggled to understand the “overlapping and inconsistent” regime of rules and standards that constituted the old law, they now have a non-exhaustive list of incommensurable factors to weigh and balance. [216] These changes to the law come at a time when legal scholars are increasingly warning, in other areas, that “the language of balance begs more questions than it solves”; it “camouflages much of the scholar’s and the court’s thinking,” and “it does not lend itself to a rational reconstruction of the argumentative path.”[217] Furthermore, where principles allow the “policies, values and rationales animating the law… to shine through,” standards such as “reasonableness in the circumstances” suffer from some of the same opacity and attenuated relationship with the justifications behind the law as rules while providing fewer predefined limits.[218] The risk is that the “standardization” of Canadian self-defence law will leave judges and juries to base their reasonableness decisions on private beliefs about the purpose of the law and prejudices about the victim and defendant.

IV. Lucky Moose Jurisprudence: Omens of Doctrinal Expansion

Individuals charged under Lucky Moose are beginning to make their way before trial courts across the country. There are still not enough cases to draw reliable conclusions about the application of the law, as researchers have done in the US. Three Canadian cases, however, hint at the potential expansiveness of Lucky Moose and its vulnerability to capricious and biased application in climates of fear.

A. Defence of Property Morphs into Defence of Person: Cormier

The vast availability of legitimate DIY security through the combination of sections 34 and 35 of Lucky Moose was revealed in Cormier at the Court of Appeal of New Brunswick.[219] Frederick Cormier was convicted of second-degree murder for stabbing and killing Spencer Eldridge, who had repeatedly threatened Cormier and challenged him to a fight.[220] When Eldridge and a companion appeared at Cormier’s father’s apartment, Cormier locked himself inside.[221] Eldridge left, but returned a few hours later, beating on the windows, having threatened by text message to smash every window in the apartment unless Cormier paid an alleged debt.[222] Cormier, his father, and a friend picked up knives and pipes and went outside.[223] The evidence here was contested, but showed that Eldridge swung a metal pipe at Cormier, whereupon Cormier stabbed Eldridge to death.[224]

Cormier appealed his conviction, contending that the judge misled the jury by leaving the jurors with the impression that he forfeited his self-defence claim by leaving the apartment. This provided the Court of Appeal of New Brunswick with an opportunity to interpret the scope of Lucky Moose. The Court of Appeal rejected the Department of Justice’s contention that Lucky Moose was only meant to simplify existing law and concluded that “in truth ... the new provisions have substantially altered the principles of self-defence ... resulting in a more generous application which could lead to more acquittals.”[225] Even if under the old law Cormier didn’t have a strict duty to retreat, the new law went further. Lucky Moose extended Cormier’s father the right to defend his peaceable possession of his property to the accused, his son, who now had a right to lawfully assist in defending the property of others. In doing so, the court reasoned, Lucky Moose also extended the castle doctrine to one assisting another to defend their property.[226] Further, by omitting proportionality as an element of defence of property (section 35) or even a factor to be considered in the reasonableness calculus in the manner of defence of person (section 34), any soft duty to avoid a confrontation by staying inside if reasonably possible appeared to be eliminated.[227] The Court of Appeal found that under the new law, it was open for the jury to conclude that “Mr. Cormier did exactly what the law allows him to do under s. 35: use reasonable force to prevent Messrs. Eldridge and Beckingham from entering or damaging the property under the peaceful possession of Mr. Cormier Sr.”[228] The jury was entitled to find that Cormier was acting reasonably in defence of property when he armed himself, opened the door, and confronted Eldridge outside.[229] Under section 35(c) of the pre-2012 law, if Cormier was found to have provoked the assault by confronting Eldridge, he would have been required to retreat. The Court concluded, “[t]his is quite possibly a case in which what began as the defence of property quickly morphed into the defence of one’s person.”[230] In this way, the interplay of sections 34 and 35 of Lucky Moose extended the castle—and not even Cormier’s own castle—into the street.

B. Proliferating Hybrid Defences: Stanley

The Court of Appeal’s “morphing” of Lucky Moose’s defence of property and defence of person provisions provided Gerald Stanley a powerful argument, which Stanley’s defence counsel, Scott Spencer, extended even further. In his opening statement, Spencer explained Stanley’s theory of the case and the place of self-defence: “[i]t’s not a self defence ... but there is a self defence factor.”[231] Stanley’s acquittal would ultimately hinge on a hybrid defence melding defence of property, defence of person, and accident.

According to Spencer, Gerald Stanley and his son Sheldon had attacked Boushie’s disabled SUV when they became suspicious that two of the occupants were attempting to steal an ATV.[232] Gerald fetched his handgun from the shed and Sheldon entered the house to get keys or a rifle.[233] Gerald fired two shots into the air or above the heads of Boushie’s fleeing friends.[234] The Crown, defence, and judge agreed that these actions qualified as defense of property and Chief Justice Popescul instructed the jury, “it is not disputed that Mr. Stanley was legally justified in defence of his property to retrieve his handgun and fire it into the air.”[235] Thus, the reasonableness of Stanley’s defence of property was never put to the jury. Without this finding, Stanley’s actions would constitute an intentional or negligent homicide amounting to murder or manslaughter.

As discussed, Canadian jurisprudence has historically rejected lethal force to defend “mere property.”[236] Stanley testified that as he approached the driver’s side window, he became frightened that his wife was under the wheels of the SUV.[237] Here, he was providing evidence that the first two elements of defence of person—reasonable belief that force is being used against them or another person (section 34.1.a) and defensive purpose (section 34.1.b)—had been met. Stanley testified that he sought to prevent further harm when he reached into the open window of the SUV Boushie was driving with his left hand to shut off the ignition.[238] He recounted that he gripped a handgun in his right hand and “[b]oom, the thing just went off.”[239] Instead of attempting to argue the third element of self-defence, that Stanley’s actions were reasonable in the circumstances (section 34.1.c), Spencer argued that Stanley’s gun or bullets were defective and that the shooting was a “freak accident” caused by a rare malfunction—a “hang-fire.”[240] Self-defence, necessary to render Stanley’s acts lawful until the fatal shot, was never put to the jury. Defence of property (explicit) morphed into defence of person (implicit) and then accident, freeing Stanley from arguing that his actions were reasonable. His acquittal hinted at new combinations and permutations under Lucky Moose.

Critics of the Stanley verdict wonder how Boushie’s death can plausibly be deemed an accident.[241] From the outset of the investigation, they had warned of hidden bias, expressing concern about an RCMP news release in the wake of Boushie’s death that mentioned thefts in the area, chain of custody irregularities around the vehicle involved, Judge Bruce Bauer’s granting of bail for such a serious offence, the RCMP’s decision not to charge individuals who posted racist comments online in the wake of the killing with hate speech, and peremptory challenges in the course of jury selection that removed all ostensibly Indigenous people from the jury.[242] Boushie’s family launched a petition for an out-of-province lead investigator and a new Crown prosecutor.[243] Their request was denied, the case proceeded as anticipated, and the verdict reinforced their belief that Canada’s justice system is systemically biased against them.[244]

C. The Highly Modified Objective Approach: Khill

Army reservist Peter Khill made effective use of Canada’s Lucky Moose expansion to win a complete acquittal after he shot and killed Jon Styres, an unarmed Indigenous man who Khill suspected was stealing his truck from his driveway.[245] Khill testified that as a trained reservist, he reacted instinctively to “neutralize a threat”, rather than calling the police from inside his Hamilton-area home.[246] Khill’s attorney, Jeff Manishen, called experts to support his contention that the jury should consider Khill’s military training when evaluating the reasonableness of his perception of the threat and his reaction to it (Criminal Code, sections 34(1)(a) and (c)).[247] Khill’s acquittal confirmed that Lucky Moose’s “contextual objective approach,” originally intended to provide battered women and other vulnerable groups with realistic options to defend themselves, had grown to encompass armed soldiers confronting threats to their property.

Manishen cautioned against comparisons with the Stanley case.[248] He pointed out that unlike the Stanley case, potential jurors in the Khill case were asked upfront about possible racial bias; three candidates were screened out.[249] Potential jurors were asked a single question, created by the judge and approved by both the prosecution and the defence: “[w]ould your ability to judge the evidence in this case without bias, prejudice or partiality, be affected by the fact that the deceased victim is an Indigenous person and the person charged with this crime is a white person?”[250] Chief Ava Hill, elected leader of the Six Nations of the Grand River, queried the effectiveness of the screening, asking, “[h]ow do you prove that? I can ask you if you’re racist and you can say no.”[251] Where Manishen argued that race played no part in Khill’s acquittal, Hill maintained that the Khill verdict was the product of “racism rearing its ugly head.”[252] Canada’s strict jury secrecy rules prevent any inquiry into the reasons for the Khill verdict,[253] so it will require a study of numerous Canadian cases akin to the Florida study by the Tampa Bay Times (including the identities of victims and perpetrators) to establish whether racial bias is systemically affecting outcomes in self-defence scenarios.[254]

The Crown has appealed the Khill verdict, arguing that, among other errors of law, Judge Glithero erred in directing the jury to consider Khill’s military training as a factor in their assessment of the reasonableness of his actions.[255] It remains to be seen whether the Court of Appeal for Ontario will recognize the historical patterns at play and circumscribe Canada’s contextual objective approach.[256]

V. Are Canadian Safeguards Sufficient?

Hopefully Canada’s national and legal culture[257] will inoculate it against the systematic bias and arbitrary outcomes experienced in Florida and other US jurisdictions with expansive self-defence laws. There are several possible bulwarks. Canada’s comparatively restrictive gun laws may protect against the abrupt and sustained increase in homicides that followed Florida’s stand-your-ground innovation.[258] It is comforting that strong majorities of Canadians continue to feel safe in their own neighborhoods since climates of fear increase the potential for fatal confrontations.[259] Though the adoption of Lucky Moose was driven in part by populist skepticism about government’s capacity to guarantee the security of law-abiding, property-owning Canadians, to date, populist leaders in Canada have been less successful than their US, European, and Australian counterparts at turning “true Canadians” against “dangerous strangers.”[260]

The foremost Canadian bulwark against capricious application of the self-defence provision is existing jurisprudence. The Department of Justice insists that “the new law is not intended to displace old jurisprudence ... previously recognized self-defence considerations continue to apply wherever relevant.”[261] Judges and juries who harbour gender or racial biases that might colour their appreciation of the reasonableness of a perception of threat, or of a claimed act of self-defence, would be instructed in relation to these biases to the extent that jurisprudence addresses these sources of bias. This requirement to instruct continues under section 34 and has the potential to mitigate the effects of hidden bias that has led to convictions where triers of fact wrongly perceived an ability to retreat or that there was no imminent threat.[262] However, it is not clear how consistently juries are in fact instructed about bias with reference to jurisprudence; not all sources of bias have been appropriately recognized.

So-called Charter values provide another potential bulwark against bias.[263] Tacit norms of the constitutional order including equality and autonomy are increasingly used to guide the development of the substantive criminal law and its defences.[264] In R. v. Tran, for example, the Supreme Court held that the “ordinary person” who forms the standard in the defence of provocation “must be informed by contemporary norms of behaviour, including fundamental values such as the commitment to equality provided for in the Canadian Charter.”[265] As a result, the Court held, an accused would not be able to rely on the fact that they were homophobic to ground a defence of provocation were the accused the recipient of a homosexual advance. Whether an act taken in self-defence was reasonable must be evaluated from a perspective that is neither racist, sexist, or homophobic.[266] Though Charter values may help inoculate section 34 against bias, their suppleness and discretionary application makes it risky to rely on them. The US experience is not encouraging. The Fourteenth Amendment guarantees equal protection in US law, serving an analogous function to the Charter’s equality protections.[267] Thus far they have failed to inoculate Stand Your Ground from biased application in Florida and other states.[268]

Guarantees of judicial independence may also play a role. Judges facing re-election in Florida and other states routinely pander to voter fear by becoming tougher on criminal defendants[269] and occasionally resorting to fearmongering and racial prejudice.[270] The Canadian system of judicial appointment by federal and provincial governments, which relies on arm’s-length judicial advisory committees to draft a shortlist of qualified candidates, has the potential to insulate judges from the popular will and encourage independent and impartial decisions in self-defence cases. Yet, judicial appointments in Canada are no guarantee that judges will apply Lucky Moose’s malleable provision in an unbiased manner.

Canadian criminal justice provides safeguards not present in the US, but in climates of fear, where hidden bias exerts its greatest influence on the application of reasonableness standards, jurisprudence, Charter values, and judicial appointments based on merit may not be enough. There are empirical reasons to question the notion that when it comes to applying Lucky Moose, Canadian judges and juries will necessarily be fair-minded, tolerant, and resistant to populist fears. Recent research by the Angus Reid Institute and the CBC found that sixty-eight per cent of Canadians say visible minorities should do more to “fit in” to mainstream Canadian society,[271] fifty-eight per cent believe Canada’s policies toward people who cross the border at an unofficial point of entry and attempt to claim asylum are “too generous,”[272] and one-in-four Canadians would like to see Canada institute a Trump-style travel ban on Syrian refugees.[273] Whether growing anti-immigrant attitudes will bias the application of Lucky Moose, or whether Canada’s civic culture and legal safeguards will prevent the kinds of abuses seen in Florida is a looming question.[274]

Conclusion

Lucky Moose has been depicted by its sponsors as a celebration of Canadian multiculturalism and diversity, with the law expanding to accommodate the needs of women and Canada’s ethnic communities.[275] Yet, when read in light of the US experience, the history of Canada’s self-defence innovation and the potential inadequacies of bulwarks against capricious application of the law should serve as a warning that Lucky Moose, when applied in climates of fear, may not achieve the equalizing outcomes Parliament expects. If the US experience teaches anything, it is that the benefits of expanded self-defence have primarily helped property-owning “true men.”

A comparison of the conceptual architecture of Stand Your Ground and Lucky Moose, and the application of Lucky Moose in Cormier, Stanley, and Khill demonstrate the expansiveness of Canada’s self-defence innovation and its vulnerability to abuse. Under Lucky Moose, the essential question is whether the accused’s actions in defending person or property were “reasonable in the circumstances.” Yet, in climates of fear such as Battleford, Saskatchewan, near where Colten Boushie was killed, concepts of reasonableness are deeply contested. In the hands of a conscientious judge and jury guided by jurisprudence and Charter values, Lucky Moose leaves space for a contextualized conception of reasonableness, one that may identify and eliminate hidden bias. Injected into a system that denies bias, invoked in climates of fear, Lucky Moose is a danger to Canada’s most vulnerable communities, to the legitimacy of our justice system, and to our efforts to build a more just society.