Gordon Dykstra and Bill Good on CKNW: Home Invasions and Self-Defence in BC

Gordon's interview with Bill Good on CKNW on September 20, 2011 discussing home invasions and self-defence in British Columbia.



The following is a transcription of the Gordon Dykstra and Bill Good interview that occurred on September 20, 2011 on CKNW.

BILL GOOD: It's the middle of the night you hear a noise coming from the back door, you go downstairs only to come face to face with someone who is breaking in your home. You make the quick decision to confront the intruder?

Or do you run away, in your own home? Last weekend in Ontario a man was stabbed to death in or just outside the house he was breaking into. And now the home owners may be charge. So what right do people have when protecting their homes and their families? And under what circumstances can they be charged for harming an intruder?

Gordon Dykstra is a Criminal Defence Lawyer and he is in studio with me this morning. We don't know all the specific of the Ontario case, but because it is in the news its makes us all wonder well what would happen if this happen to me? So how much right do you have to protect yourself and to protect your family in your own home?

GORDON: Under the Criminal Code of Canada you're entitled to use whatever force is necessary to remove a trespasser, and in addition, you are entitled to remove whatever force is necessary to remove a person in your home. And in the circumstances the courts have always said that it has to be a force that is somewhat equivalent to the force that is being applied to you.

BILL GOOD: But how do you know what force is going to be applied to you.

GORDON: Well that's the next step in looking at that and that is is that it doesn't have to be finely balanced, it can be more force if necessary, as long as it is sort of within the range of what is necessary. And the courts take a 2 step process which is probably a little bit complicated and difficult to explain. But first they look at the actual force that is being applied and the force that's used to resist the force that's being applied to you.

But even if you find that the force that you use is more than what is being applied to you their is a second step in the analysist and that goes this way and its a little bit complicated and everybody has lots of problems with this and that is is that if you use more force then whats necessary its still possible to say "but I believed the force that I was using was the required in order to repel the attacker", and then the court goes on and says "well if you beleive that that is fine, but do you have a reason to believe that?" so it's a very complicated ...

BILL GOOD: Ya because you don't know if the person is coming through the window or back door has a knife or a gun or you don't know what they might have.

GORDON: Well exactly right, and your right about that, but that goes to the concept of what do you beleive is going to happen to you and if you have a reason to believe that then you will be fine and its a difficult concept and judges have written pages and pages about it and havent really made it any clearler but in each individual circumstance its probably easier to apply it because then you know what the facts are and the facts are if their is a person with a weapon you are entitled to go get a weapon.

BILL GOOD: But if someone keeps say a gun in the table by their bedside....

GORDON: Which lots of people do...

BILL GOOD: They do, and they see somebody coming through the door in their bedroom do they have to wait to see if that person has a gun before they shoot them?

GORDON DYKSTRA: Depends on the circumstances if they see that they have a weapon, you are entitled to reach for the gun, if they have no reason to believe that that person has a weapon then they are probably not entitled to reach the gun. But even explaining it it becomes obvious that this is a very difficult.

BILL GOOD: Ya its pitch black it the middle of the night you wake up your terrified you got to perhaps a spouse or you got children down the hall that you want to protect.

GORDON: Yes it is very difficult concept, but as I've said before the courts don't finely balance it they look at what the circumstances are and they look at what you believe you are seeing and they look at what you are actually seeing and I think it is not a fine line and I think at this day and age because of the crime development I think that the courts are going to be more relaxed then what they have been in the past because people are being threatened with home invasions.

BILL GOOD: I was going to say home invasions are something that is relatively new in our society but it is a terrifying thing to think about.

GORDON: And that is what give a person a perception or at least a belief that this is maybe what is going on. I mean it it in the media it is in their consciences all the time and therefore they have a perception and believe that there may be substantive force being used and you can resist that with substantive force and so I think that the courts are probably going to be more lenient or more generous in terms of what force you can use to repel somebody coming into your house.

BILL GOOD: Has this ever happened to you? 604-280-9898 to call us questions, comments. We just have a few minute for calls Gordon Dykstra is my guest, he is a criminal defence lawyer we are talking about self defence but specifically self defence or defending your home or your family - 604-280-9898 or toll free around the province of British Columbia 1.877.399.9898.

BILL GOOD: Talking with Gordon Dykstra a criminal defence lawyer, talking about just where you are form a legal point of view if someone breaks into your house. Blair good morning.

CALLER: Good morning. I got a different take on this, we had our house broken into and I got a call from the alarm company and from the point and time I got the car it was 20 minutes before I got back to the house. Who would have presumed the guy would have still be there, I went into the house, heard a noise, went around the corner and found him in the front of the house. Okay. So now, ok I found a guy in the house, did he have a weapon or not I don't know. I made him sit on the floor hands on his head so he had nothing to do. 26 minutes later, (I know the times from my cell phone calls) the RCMP showed up. So he was in the house for nearly 50minutes. So when you got a guy sitting with you for 26 minutes it's a little absurd. Yes, I talked to 911 they were nice enough to keep me on hold and listen to what was going on.

BILL GOOD: How did you subdue him?

CALLER: He was stuffing stuff in a the bag, did I subdue him? No, I scared the flippen crap out of him, me too! I mean I was scared too. And back from training days when I was young we were told to make them sit down cross legged on the floor and put their hands on their head because you can't stand up without putting your hands down if your hands are on your head and I just made him sit there.

BILL GOOD: Well I say you were very lucky.

CALLER: I did that for 26 minutes.

GORDON: I think it was the right response. It was unfortunate that the police didn't show up in a reasonable time but I think your response was exactly the right one.

BILL GOOD: Hello caller.

CALLER: Hello.

BILL GOOD: Hi.

CALLER: Hi I'm sorry...umm....

BILL GOOD: Caller are you there? That was odd, he was a retired police officer. I was interested to hear what he would have had to say. Caller Hi...

CALLER: Yes, I have a question for Mr. Dykstra? The two of you were talking about you posed a situation that if you had a gun in a drawer beside your bed. Now if your keeping a gun in your drawer beside your bed and a 1 in 500,000 chance that someone will break into your house, are you are not breaking the law already? Because you're not supposed to have a gun unless its locked up in the house? How do you reconcile that with the law?

GORDON: Well you are right about that as long as the gun is registered in your name your entitled to have, but you are suppose to keep it in a locked cabinet, the approved method with the lock on the trigger. But a lot of home owners feel that that isn't sufficient for the purposes for which they have the gun in the first place which is to have easy access to it. But you are right when you have a gun laying in your night table you are violating the law because it is called unsafe storage of a firearm.

BILL GOOD: Gordon.

CALLER: Yes, I am a retired police officer and just on your last comment there, he is correct in saying that having a gun in the night table is contrary to the law, unless your there with it. If your there with it there is no storage issues and you have every right to have it there.

BILL GOOD: I didn't know that.

CALLER: Also, if someone comes through your bedroom door in the middle of the night the last thing you want to be thinking about is what's the courts going to do. You have to be thinking about your safety. That person has already travelled through the entire house and is coming into your bedroom knowing you're going to be there, that is a threat beyond all threats as far as I'm concern. It should be for everybody, your life is in danger there. You are going to receive bodily harm or worst. You have to consider that. There is just no reason for them to be in your bedroom.

BILL GOOD: I guess what's hard for people to understand is how there could be any question about that
CALLER: Well I can speak to that as well. We've suffered through so many years of liberalism in this country that we gone so far , the pangolin has sprung so far away from the victims now we are charging people that are defending themselves and their property.

BILL GOOD: Remember the case a year or so ago in Ontario the shop keeper was charged with unlawful confinement?

CALLER: Absolutely.

BILL GOOD: Because someone who had robbed him earlier came back to do it again and he subdue them and held them until police could arrive and then he wound up, I believe he was found not guilty eventually but he had to go through that whole process.

CALLER: Right and this type of thinking is came down from above and its gone through the police ranks, but not at the street level its mostly coming down from above and where they don't want anyone to protect themselves and its ridiculous. You have a right to protect yourself and your property. And when I was in the force I spoke to this many times in meeting and so on, but you don't get promoted when you get that kind of attitude so if you're in the upper end of the police forces you go with the flow and for so many years it was the liberal flow and the charter right and so this is what we are dealing with now.

BILL GOOD: Thank you Gordon. Caller last call.

CALLER: Ok good morning bill thank you for taking my call, we use to have an insurance broker living with us for a few years and the one thing he brought up to my knowledge and I woke up in the middle of the night and there was an intruder in the house and run over to the stair case and I look down and I startled him, that if he falls down those stairs and breaks his leg or arm he comes back and sues me as the home owner what's up with that?

GORDON: Well I find that very difficult that he would be successful. I think that if he is trespassing in your house and you have done nothing that we think is careless or negligence then I don't think he has a claim against you.

BILL GOOD: I would think you would defend me if I threw him down the stairs.

GORDON: Well throwing him down the stairs of course is a different thing. It depends on the circumstances, obviously if he acts threatening then I think you're entitled to throw him down the stairs.

BILL GOOD: But doesn't the act of threatening simply by being in your home.

GORDON: Yes he is and I think the previous caller had that correct when the Caller, the retired police officer told us that for some time we have had sort of what I call a understanding attitude and I think that with present development as they are now what's with home invasions and all that I think that shifting, I think he is absolutely right we are shifting back to giving home owner more power to resist invasions and resist trespassers.

BILL GOOD: Thanks for doing this.

GORDON: You're welcome.

BILL GOOD: Gordon Dykstra.

GORDON DYKSTRA: And thank you for asking me to be here.