THE FOLLOWING ARTICLE HAS APPEARED IN THE RECORD ON July 24, 2003

Vigilante conduct or justified self-defense?

The decision to charge Singh Valcha and Singh Saini with aggravated and armed assault against their burglar was bound to raise the ire of more than just home and small-store owners. While the Crown prosecutor who authorized the charges may have had little choice because of public policy, the odds of a jury convicting would appear slim. Any experienced defense attorney will argue that the two mild-mannered immigrants who had invested their life savings in the little St. Hubert depanneur were only trying to protect it against a rash of costly burglaries.

In case you missed the story, thieves had previously broken into their nondescript store on two previous occasions and made off with over $35,000 worth of merchandise, in large part cigarettes. After spending $2,000 on new door locks, both partners who were new to the depanneur business weren't about to wait until their life savings were totally depleted. With the help of an aluminum baseball bat, they decided to lie in wait for the next robbery. The incident that gave rise to the charges occurred a few a few days later, when two men began burglarizing their store. One of them ended up in Charles LeMoyne Hospital with injuries to his head, torso and legs, apparently inflicted by the baseball bat, hence the charges of aggravated and armed assault. The second man fled. While the police have revealed little information on the all-important question as to what transpired just prior, and during, the alleged assault, most people would be inclined to believe that the thief deserved every bit of his lesson.

Shortly after the charges were authorized, the Montreal Gazette devoted an editorial (July 2, 2003) to the case under the heading "Vigilante policing no way to fight crime." After attributing the owners' actions to vigilante action, the Gazette took the position that "protecting cases of cigarettes could not possibly fall within the Criminal Code's justification for reasonable force." The editorial writer suggested that other options were available, such as informing the police of their tactic and requesting a speedy intervention or setting up a neighbourhood-watch program. Within days of the editorial, Pierre Lemieux, co-director of the Economics and Liberty Research Group at the Université du Québec en Outaouais, responded in a stinging column, which was also published in the Gazette, to the paper's credit. He accused the Gazette of "... insulting common sense, violating morality, ignoring economic and criminological research and negating a few centuries of Western tradition." He then went on to argue that "protecting the aggressor and prosecuting the victim, favoring the criminal over the honest citizen, is not the mark of a civilized society, but the imprint of a quiet tyranny."

While public criticism against the laying of criminal charges is not unusual, cases involving self- defense and the defense of property by law-abiding citizens are almost always sure bets. The reason is simple -most people believe that the use of force by a home or storeowner against a burglar is worthy of a medal, not a criminal charge. In actual fact, the issues are far more complicated. In order to protect and ensure the safety of all citizens, every criminal justice system must decide under what circumstances citizens should be excused for using force against one another. Equally important is knowing when the use of force becomes excessive. For example, if a homeowner pummeled a thief after he surrendered, most criminal justice systems would say the homeowner crossed the legal line. The same can be said about gunning down an unarmed 90-pound trespasser who did nothing to threaten the life of an owner, or using a baseball bat in response to a slap. Whatever the pre-determined legal limits, the corollary is that no one can take the law into their hands.

There is another good reason why such charges are prone to provoke the type of controversy as in the present case. The code's self-defense and defense of property sections are not easy to understand. In fact, the nine articles of the Criminal Code, which refer to them, have been criticized for being needlessly complex, confusing and inconsistent. Judges, lawyers and bar associations throughout Canada have consistently recommended that they be scrapped and reformulated. As far back as I987, the Law Reform Commission of Canada advised the federal government that they should be repealed and replaced with a single, comprehensive provision.

Defense lawyers have been particularly vocal in criticizing the sections, which have remained virtually unchanged for over a hundred years. They deplore the fact that whenever people attempt to defend themselves, they risk being prosecuted as soon as they exercise a questionable degree of force. On the other hand, law-and-order advocates argue that too many criminals have benefited from the confusion because of erroneous legal instructions to juries by trial judges.

It goes without saying that if lawyers and judges have a hard time knowing how much force is allowed, no one should be too surprised by the recent controversy. This is not to say that there is no light at the end of the tunnel. Last October, Justice Minister Martin Cauchon launched a complete overhaul of the Criminal Code of Canada that should take five years to complete. One change that is sure to receive full support is the code's defense of property and self-defense sections.

Next week: Part 2 Defense of property and self-defense