Gaultieri ruling reinforces fundamental British law

by Gary McHale - The Regional

September 14, 2011

I would be the first to admit that I wasn't raised to be very proud of Canada's British heritage, and as a country we rarely demonstrate any pride in our roots. However, the past five years have taught me that it is in the darkest days that the importance of the these roots become apparent. Our justice system and our rights as defined under the Charter of Rights didn't appear in a vacuum but were established by generations of the people who fought and died for them.

For example, it is Canada, not the USA, that allows citizens to file private prosecutions as vital part to our democracy which ensures average citizens can hold government officials accountable. The 1986 legal report to Parliament states:

"Our conclusions have not been reached in a vacuum. We have examined the comparative experience of other countries and other societies... In general we have concluded that the retention and expansion of the right of private prosecution in Canada would respect a value that is reflected in the ideological history of the criminal law itself... the private prosecutor ought to enjoy the same rights as the public prosecutor... This is a modest proposal but an important one, since it underscores our belief in the value of citizen/victim participation in the criminal justice system and serves to reinforce and demonstrate the integrity of basic democratic values."

The Gaultieri ruling raises an interesting question. The near death beating of Sam Gaultieri resulted in two convictions - 1) Aggravated assault, 2) Break and Enter to commit an indictable offense.

The first conviction carries a maximum of 14 years in jail - clearly reflecting the seriousness of the assault. However, the second conviction carries a maximum of life in jail.

At face value one would naturally think that beating a person which resulted in brain damage would be far more serious than merely entering someone's home. However, it is not until you reflect on the British history of these offences that you come to understand why a B&E is considered so serious.

It was in 1628 that Sir Edward Coke established in law the idea that a "man's house is his castle" and that "each man's home is his safest refuge". Within a hundred years this idea was expanded to include "a man may assemble people together in order to protect and defend his house".

In 1763 the British Prime Minister stated, "The poorest man may in his cottage bid defiance to all the forces of the crown. It may be frail - its roof may shake - the wind may blow through it - the storm may enter - the rain may enter - but the King of England cannot enter."

While it was the 17th and 18th century that established this principle in law the idea was already widely believed by many even in the 14th and 15th centuries. We cannot mistakenly overlook the importance of the use of the word 'castle'. In the 14th century they knew how important a castle was for the safety and security of people. By definition a castle is a fortified walled place with a permanent garrison which provides security.

This idea that every single citizen, from the poorest to the wealthiest, has a home that is his castle by which they can live in peace and safety remains fundamental to Canadian law to this day.

Enshrined in our Charter of Rights is the fact that "everyone has the right to be secure against unreasonable search or seizure" thereby ensuring that the King himself cannot enter your castle without legal warrant.

Our criminal code authorises citizens not only to be able to defend their property but gather others to aid in that defence. Section 41 states, "Everyone who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser, if he uses no more force than is necessary."

It is the very reason that everyone's home is his castle that someone breaking in for the purpose of committing an indictable offence is subject to life in jail. Every citizen has the right to live in peace and safety within their own home knowing that their home, like a castle, will be protected.

Unlike Americans, where this Castle Law means citizens can shoot to kill trespassers, we, as Canadians - part of our British heritage, have entered into a social agreement that the garrison that defends our castles will not be our own personal army but will be the local police.

It is because we trust and rely upon the police to be our garrison to protect our castle that we, unlike Americans, have no right to bear arms, a right that is constitutionally protected in the USA. Our British heritage establishes that the full force of the state will be used to ensure the protection of our castles and in return we remain loyal to the state.

In general, Canadians have honoured this arrangement. We, as citizens, don't bear arms to protect our property or protect ourselves from the state. We continue to believe that it is the job of the police and government to ensure that our homes are our castles.

It is in this light that we must see the actions of the OPP as not merely a hiccup in public policies but a fundamental rejection of the very principles by which Canada exists. The actions of the OPP is a destruction of 500 years of a social contract between the people and the state.

When people cannot call the OPP when their castle is under attack or when the OPP will stand there watching your castle being breached then the very heart of Canadian society has collapsed.

Are people now to take steps to ensure their castles are not attacked? Are we to follow the Americans and start bearing arms against our neighbours?

Only the OPP can re-establish the vital social contract that existed for 500 years, but will they?