Legally Speaking with Michael Mulligan
Legally Speaking with Michael Mulligan
Self-Defense Rights in Your Home
What happens when the line between victim and perpetrator blurs in the eyes of the law? When a homeowner confronts a crossbow-wielding intruder or store employees stop a car theft, should they face criminal charges or civil lawsuits for defending themselves and their property?
Barrister Michael Mulligan unpacks the controversial legal landscape of self-defense in Canada, explaining how the 2012 amendments to the Criminal Code created a complex "reasonableness" requirement for those protecting themselves or others. This means that even when facing deadly threats in your own home, the law expects you to consider factors like the relative size, age, and gender of your attacker before responding. As Mulligan notes, "When you're fighting for your life or to save your children, you don't need to worry about weighing up how old this person is and what their gender is."
The discussion extends beyond criminal liability to civil lawsuits, highlighting a case where a self-described "career criminal" is suing grocery store employees who prevented him from stealing a car, claiming they damaged his self-esteem. This mirrors Alberta's experience, where a rancher faced legal action from a thief after firing a warning shot. The provincial response—legislation preventing "criminal trespassers" from suing unless force was "grossly disproportionate"—offers a potential model for other provinces.
The episode also examines a revealing case about Uber's wheelchair accessibility requirements in BC. Instead of mandating accessible vehicles, the government collects a 90-cent fee per non-accessible trip—money that disappears into general revenue while wheelchair users remain unable to use the service. When one wheelchair user won a $35,000 human rights award, the BC Supreme Court overturned it, revealing the tension between regulation and actual solutions.
These cases raise fundamental questions about our legal priorities: Should we better protect those defending themselves and their property? And when regulations like Uber's accessibility fee don't solve the actual problem, what's their real purpose? Listen for an eye-opening look at where our laws might be failing those they're meant to protect.
Follow this link for a transcript of the show and links to the cases discussed.
It's time for our regular segment, joined as always by Barrister and Solicitor, with Mulligan Defence Lawyers, with Legally Speaking on CFAX 1070. Good afternoon, michael Mulligan. How are you?
Adam Stirling:Hey, good afternoon. I'm doing great, always good to be here.
Adam Stirling:Some interesting things on the agenda today. I'm reading here criminals suing for injuries and homeowners being charged for assaulting intruders. I know this was an item that was in the discourse recently and myself and callers were discussing it, but you, of course, being Criminal Defense Council, know exactly what is and is not allowed in these situations and it's come up a couple of times recently.
Michael Mulligan:It has, and it's come up in a couple of different contexts. Right, many listeners will be familiar with the controversial recent case out of Ontario where there's a homeowner who has been charged with assaulting a burglar who broke into his home with a crossbow and there was a physical altercation between the homeowner and the crossbow wielding intruder and both the intruder has been charged with the break and enter, but they've charged the homeowner with assaulting the intruder, and so that has produced some real controversy in terms of whether that should be so. There's also been some recent involving a civil claim by a person who is attempting to steal a car, and I'll come to that in a moment because the two things have different sort of elements to them. The Ontario case, of course, is concerned with the criminal code provisions dealing with self-defense. The other case we'll come to in a few minutes involving a grocery store being charged with assaulting a thief, deals with civil liability, which is a provincial responsibility. So what's happened federally is that back in 2012, there were amendments made to the self-defense provisions in the criminal code Prior to 2012,. In fairness, there were multiple provisions and they were relatively complicated. They could become challenging, for example, for a judge trying to explain them to a jury or how they're to be applied, because there were different provisions.
Michael Mulligan:But at that time, when you were dealing with sort of the upper end of seriousness in terms of the amount of self-defense required where a person believed they needed to defend themselves or someone else against death or serious bodily harm, that would likely be the crossbow-wielding intruder in your bedroom, right? Hard to imagine what's much more serious than that, and it'd be easy to imagine how a person could legitimately have a concern that they're going to die or be seriously injured when you've got a burglar in your bedroom with a crossbow Prior to 2012,. If that was so, there no longer needed to be any assessment as to sort of the degree of force you were using to save your life or save your family's life. Right, you didn't need to worry about. You know, should I use the kitchen knife here, or should I just hit him softly, or might I be able to get him in the leg? The idea was well, once you're protecting your life or protect yourself from serious bodily harm, there was no more assessment of sort of reasonableness or weighing up with nicety the force used. But what happened in 2012?
Michael Mulligan:In that effort to try to make simpler and combine the different versions of self-defense that existed is we now have a version in the criminal code that provides that where somebody is acting in self-defense, that is to say, using force to protect themselves or someone else, whether it's a death, threat to their life or just being assaulted or bodily harm there is a requirement of an assessment of reasonableness. Now, on one level, you might say, well, surely we should all strive to be reasonable. Fair enough, right. But when you put yourself in the position of the homeowner, with the burglar in your bedroom, and the fact that you now need to engage in a consideration of the reasonableness of the force used, with a series of factors that a judge or jury must consider, labeled A through H, with things like the nature of the force used Was it imminent? The relative size, age, gender and physical capabilities of the two parties, things of this sort, it can make it, even though, at the end of the day, you might well have a jury that says, yeah, you don't need to measure this with nicety, not guilty.
Michael Mulligan:It is a very significant matter, of course, to be the homeowner charged and have to go through trial to sort out whether all of these factors led up to reasonableness, and so that's why there's some current political discussion about whether we should maintain that, particularly in circumstances where you've got like an intruder in somebody's heart in a home or where you're trying to save your life, should you really be having to weigh up, ultimately to trial, the reasonableness of it. And you know, could you've got the guy in the leg, or you know how old were they and how big are you and various things. And so that's from a criminal code perspective, I think there is, I think, real good scope for debate about whether we should have that sort of weighing up reasonableness, particularly in cases of very serious threats or maybe even for things like you're in your home. Where else would he supposed to do, imagine waking up in your bedroom to that kind of intruder? So that's the criminal side of it, but there's also a civil side of it, and there's a recent case out of Manitoba that raises that issue and the fact pattern.
Michael Mulligan:There was a person who describes himself as a career criminal and in some document he mentioned having dealt with something in the order of a million dollars and stole a property at various times, went into a small grocery store and stole a jacket that had a key fob in it, waited about half an hour and then came back using the car key fob and tried to steal a car from the parking lot using the stolen fob from the stolen jacket. And the allegation is a bunch of the employees of the grocery store ran out, dragged them out of the car and beat them up, basically, or the police showed up. None of the grocery store employees were charged with anything. The thief obviously was. But the thief is now suing the grocery store and all the employees, alleging that they used too much force in what they did to him when they dragged him out of the car that he was attempting to steal, and he's alleging that that's caused damage to his psychological state and had a negative impact on his self-esteem and how it's interfering with his ability to continue to earn a living. Presumably he doesn't mean by continuing to steal things, but maybe that's what he was referring to, and so there's been some consternation about should that be permissible right Now I should say the law does permit people to use reasonable force to prevent an offense or to detain somebody for the police to show up.
Michael Mulligan:You're not permitted to beat somebody up to teach them a lesson, right, that's not allowed. Now, I should say one of the protections we have both in British Columbia and in Manitoba not all provinces have it, but we have it here and it exists there and it's important is we have a right to a civil jury. So if you're the grocery store employees, one of the things you could do there if the same thing happened in British Columbia you could elect to have a civil jury with regular members of the public who would then come in. In BC's case, it's an eight-person jury. In Manitoba it's a six-person jury who would try the case, and you might well imagine that the public values that that might bring to bear might influence whether the jury would be persuaded to grant financial compensation to the career criminal thief who was dragged out of the car by the grocery store employees.
Michael Mulligan:Right, but that's not an isolated thing and other provinces have dealt with it in a bit of a different way, like in Alberta just a few years ago I think it was 2018, there was a rancher who came out and discovered that there was somebody rummaging through his vehicles to steal things, and the rancher had a shotgun and he fired a shot into the ground, I guess as a warning, but unfortunately one of the pellets deflected off the ground and hit the thief in the arm, and it resulted in the thief suing the rancher. The Alberta response to that was to amend the legislation there. It was called the Trespass Statute Protecting Law Abiding Property Owners Amendment Act in 2019. Statute Protecting Law Abiding Property Owners Amendment Act in 2019. And so, as a result of that, now in Alberta there is no cause of action if you're a quote criminal trespasser, unless the property owner used force that was grossly disproportionate in the circumstances. So that's much more than reasonable, and that person must also have been convicted of a serious criminal offense prosecuted by indictment. And so the effect of that is that you're not going to release the case of trespassing. When somebody is doing something to repel the criminal trespasser or scare them off, they're not going to be able, at the end of the day, to sue you, and so something like that would be the responsibility of each province, right? And so that's something that perhaps should be considered in the context of that Alberta case and that current Manitoba case, whether that sort of a provision would be an appropriate one.
Michael Mulligan:So there are two aspects to it the criminal code self-defense provisions and whether we ought to continue to have that requirement for reasonableness, weighing up of the force being used, with this long series of factors that must be considered in circumstances where somebody's in fear of their life, where you've got a you know, armed burglar in your home, or whether the law should be in those circumstances, maybe something equivalent to that civil law in Alberta.
Michael Mulligan:You know, maybe you could use some language about grossly disproportionate force, or maybe we should return to what we have prior to 2012,.
Michael Mulligan:Right, when you're fighting for your life or to save your children, you don't need to worry about weighing up the how old is this person and what is their gender, and how tall am I and how tall the person comes in with a gun or crossbow into your bedroom.
Michael Mulligan:Maybe we shouldn't require that, even if, at the end of the day, a jury might not convict you.
Michael Mulligan:Perhaps we shouldn't have a circumstance where you need to be concerned with that. That might also, of course, have a deterrent effect. You know, I suspect that in some places, you might have more careful thought about whether you want to be breaking into somebody's house if there isn't quite the sort of weighing up of the force that might be used to defend you, although I suppose, at the end of the day, as with many of these things, I doubt that there are a lot of homeowners, or indeed burglars, that are carefully weighing up the list of things in Section 34 of the Criminal Code when they're deciding what to do when faced with the intruder in their bedroom, and so perhaps we should just give some forethought to whether we want to have a circumstance where that weighing should occur after the fact, because I doubt a lot of people are doing that when faced with that sort of a frightening circumstance in their home. So that's what's going on with self-defense, both civil and criminal, across the country right now.
Adam Stirling:All right, we'll take our first break. Legally Speaking with Michael Mulligan from Mulligan Defense Lawyers will continue right after this. We are back on the air here at CFAX 1070 with Michael Mulligan from Mulligan Defense Lawyers. Legally Speaking on CFAX. Michael, where were we? We covered the incident of injuries and whatnot with intruders. I see a couple of other stories here. We've got nine minutes left.
Michael Mulligan:Sure.
Michael Mulligan:The next story on the agenda is a case involving Uber and a human rights complaint in British Columbia, and the background of that is this when Uber was licensed to operate in British Columbia, one of the things that was contemplated by the provincial government was whether there should be some sort of a requirement that they provide wheelchair accessible vehicles. Now that is required in another context. It's required for taxi companies at least some taxi companies, right? There's a requirement that there be a certain percentage of taxis that are accessible using a wheelchair. You'll see a taxi, a van, with a ramp that comes down to the back, for example, right Now for ride-hailing companies, including Uber, it was contemplated whether to require that. Now it's a bit more complicated in the ride-hailing world because, of course, uber doesn't own any vehicles at all and anyone can sign up or not sign up to operate an Uber. So it'd be a bit more challenging to try to ensure what particular kind of cars or what percentage of them are out there, given that any of the people who are Uber drivers can choose to turn on and off their app anytime they feel like it. Right? And what do you do if you're Uber, I guess, and all of the people with the vans just say, yeah, not interested in doing that right now. Right, how do you make sure you've got some percentage of wheelchair accessible vehicles out there In any case?
Michael Mulligan:The province considered that and, in the regulations, instead of requiring them to have a percentage of vehicles that were wheelchair accessible, instead the provincial government decided to require Uber to pay a fee to the provincial government of 90 cents for every passenger trip in which there is not a wheelchair accessible vehicle used. So every time you get in an Uber unless a kid or so you're paying it right. You're paying 90 cents to the government for that fee right Now. At right, you're paying 90 cents to the government for that fee right Now. In that context, there's a fellow over in Vancouver who uses a wheelchair and he brought a human rights complaint, and his human rights complaint was either no way to call a wheelchair accessible vehicle using the Uber app and I don't know whether that's still the case, but at least that was the case at the time and so he brought a challenge and the Human Rights Tribunal had to sort out well, what's the meaning of this 90 cent charge? And Uber's argument was well, hold on. We had a whole bunch of hearings about this and the provincial government decided to impose this 90 cent trip fee that we pay for every single trip for a vehicle that's not wheelchair accessible, that that was an alternative to requiring us to somehow ensure that there were enough wheelchair accessible vehicles being used by Uber drivers at any given time. What's going on? Why should we? We can't be also subject to a human rights complaint? What's happening here? Well, the Human Rights Tribunal disagreed and they said no, no, no, the 90 cents wasn't somehow an alternative, it was an effort to try to get them to use wheelchair accessible vehicles. And so they awarded this fellow $35,000 and ordered them to stop doing this.
Michael Mulligan:Well, that just wound up by way of a judicial review of that decision, and the BC Supreme Court judge that reviewed it reversed what the Human Rights Tribunal found and the judge reviewing it found there just was no evidentiary basis for the conclusion that that 90 cent fee was somehow intended to encourage Uber to use all vehicles that were wheelchair accessible. It just is. There's just no basis for that conclusion. Found that it was just not a reasonable interpretation of what happened. But, on the flip side, the judge said look, I don't. The judge didn't go so far as to conclude that this was intended, clearly, to be an alternative choice. Both things still applied, but the interpretation given to it by the Human Rights Tribunal was not an appropriate one or correct, and so they've got to go back and assess it again in light of that conclusion. And the judge looked at things like the Hansard and the hansard and the debates about it and the hearings about it and all of this now.
Michael Mulligan:So there'll be a new, there'll be a new hearing with the human rights tribunal, but I guess here's really the the rub of it all. Right, if you're the person who's uh, uses a wheelchair, um, paying 90 cents to the government doesn't do anything for you, right? Yeah, um, I mean the. The judge's conclusion was this $0.90 fee was to somehow allow for more other accessible options and to defray the government's cost of regulating ride-hailing companies. But what good does that, do you if you're in a wheelchair, trying to get a vehicle? And so the money just appears to be going into government revenue and not really achieving that goal at all. And so perhaps we'll see what happens on the redo of the Human Rights Tribunal hearing.
Michael Mulligan:But you could imagine creative things that could be done with that money. Maybe the government can use that as an incentive to encourage people or subsidize wheelchair accessible cars for Uber drivers. You can imagine doing things with that, even if it's not as simple as just saying I order you to have 10% of the cars wheelchair accessible, because that's very challenging. You could imagine other things you could reasonably do with that money. If you were the government. That might help alleviate the underlying issue here, rather than just putting it in your pocket and allowing these things to sail on.
Michael Mulligan:The other thing that'll happen if the Human Rights Tribunal, on some different basis, comes to the same conclusion the alternative argument made by Uber, and it wasn't addressed because the judge said I don't need to, given my finding on that Interpret First issue. He said well, uber's other position was well, these things are just completely inconsistent. You've got a regulatory scheme that seems to expressly contemplate not having vehicles that are wheelchair accessible and having to pay a certain fee for that reason. And then if the Human Rights Code makes that unlawful, well, what are you supposed to do? The two things just seem to be incompatible orders or incompatible legal requirements, and so if the thing's just allowed to sail on and go back, that may be where we wind up. You know, another year or two from now, and you know again, people that are using wheelchairs are no better off trying to get around, and so hopefully the government will take notice of this and perhaps do something with the 90 cents multiplied by the total number of Uber rides all over the province it's going to be a substantial amount of money and come up with a way to use that to solve the underlying problem rather than simply leaving it as a human rights matter.
Michael Mulligan:To come back once again, I also must say, as I read this thing, it was kind of buried.
Michael Mulligan:It buried this thing on page 25 of the decision.
Michael Mulligan:It's hard to understand quite how the Human Rights Tribunal would have come to the conclusion that this fellow who brought the complaint would come up to the figure of awarding him $35,000.
Michael Mulligan:It seems like a rather out of the cold blue sky when trying to determine what your you know proper compensation or loss would have been for this state of affairs, bearing in mind, of course, there are other alternatives. Like you know, all the taxi, you know the taxi companies are required to have those vehicles, and so you know, maybe some consideration should be given as to whether that, whether this, that is to say leaving this as a human rights matter, is the right solution. $35,000 to one person doesn't seem to get the job done, nor does having the government just collect up a bunch of 90 cent fees without doing anything seem to get the job done, and so hopefully this gets a little bit of attention so that there can be a proper solution and people can get around. And you know, the money just doesn't go into general revenue. So that's the latest from the BC Supreme Court, the Human Rights Tribunal and Uber.
Adam Stirling:Michael Mulligan, with Mulligan Defense Lawyers, legally speaking during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always. Thanks so much. Always great to be here. All right, quick break News is next.