Does it ever strike anyone as odd that victims trying to protect themselves get longer sentences than the perpetrators?
Saini's defence
National Post
Monday, July 07, 2003
In recent years, it has become increasingly evident that legislators, judges, bureaucrats, prosecutors and police brass are more eager to punish law-abiding citizens who defend their own property against robbers than they are to prosecute the robbers themselves. A Montreal convenience store owner who used a baseball bat to deter a tire-iron- wielding robber a week ago has become a victim of this maddening trend.
Harjeet Singh Saini and business partner Raj Singh Valcha had purchased an independent convenience store in the Montreal suburb of St. Hubert. During their first three weeks in business, thieves broke in three times after closing, stealing cigarettes, cash, lottery tickets and other merchandise totalling $40,000 -- nearly half a year's profits. Frustrated by the loss and the police's apparent lack of interest in capturing the thieves, the two owners took turns sleeping in their store's backroom. When a 45-year-old burglar and his partner in crime tore off the front door locks at around 3 a.m. on June 29, and wheeled in large garbage cans to fill up with smokes, Mr. Saini and a friend surprised the would-be thieves, chasing off the knife-wielding accomplice and knocking unconscious the alleged ringleader.
Despite the fact the 45-year-old lunged first at Mr. Saini with the tire iron used to jimmy open the lock, police have charged Mr. Saini with aggravated assault and armed assault for retaliating with a baseball bat. Crown prosecutors seem intent on pressing ahead with the charges, too, even though the injuries Mr. Saini inflicted were insufficient even to keep the burglar from appearing for arraignment less than 36 hours later.
We see Mr. Saini as a hero. But according to the topsy-turvy logic of our legal establishment, those who exercise their ancient right to defend their property are considered greater threats to public safety than the burglars and home invaders they are attempting to repel.
Indeed, supporters of the current notion that only institutionalized police services have any role in law enforcement have swung into action. Montreal's normally sensible The Gazette, for instance, editorialized that "the justice system is obliged to charge [Mr. Saini] to discourage other store owners from similar actions." Yves Servais, the deputy director of Quebec's association of neighbourhood corner stores, said, "I would rather see a [store] lose a pack of cigarettes than see someone killed ... who says the thief couldn't have been armed?"
But the thieves were armed -- both of them -- and they were after Messrs. Saini and Valcha's livelihoods, not just a pack of cigarettes. One or two more robberies of the magnitude the new store owners suffered in their first 19 days in business and they might well have lost their investment and their dream.
Prior to this current, emasculated generation, police, editorialists, politicians and prosecutors would have instinctively understood that using a baseball bat to defend against armed thieves easily met the Criminal Code's test that self-defensive force must be proportionate to the threat of bodily harm or property loss presented. Until relatively recently, it was understood that the justice system is merely a collectivized deputy or surrogate for every individual's ultimate right to defend himself against criminals.
William Blackstone, the great chronicler of English law, stated that where an intruder had felonious intent, homicide in defence of property was "justified by the laws of nature." Blackstone even argued that an owner had the right to kill anyone on his property uninvited after dark -- even an agent of the king with a warrant -- without first ascertaining his purpose. No one would argue that Blackstone's formulation is appropriate in our own less violent age. Nonetheless, this expansive understanding of the right to self-defence generally prevailed in the English-speaking world until the 1960s, when it fell prey to the erosion of private property rights, and the growing belief that crime was more the fault of society than of criminals. Only in the United States, where both private property and the right to bear arms are constitutionally protected, has the right to self-defence not been completely stamped out -- yet.
In a high-profile case in England, a cranky, hermitic farmer, Tony Martin, shot and killed a burglar who broke into his farmhouse in the middle of the night, and wounded another. Even though the pair had more than 60 criminal convictions between them, it was Mr. Martin who received the greatest jail term. He was released only last month after spending more than four years in prison. And in a bizarre role reversal, the burglar Mr. Martin merely wounded has been given judicial permission -- as well as a government grant -- to sue Mr. Martin for his injuries. As the "victim," he must also be informed of Mr. Martin's whereabouts, now that the farmer is out of jail, even though he has previously threatened to kill Mr. Martin in revenge.
The only stop-gap against such effete reasoning appears to be popular outrage. When two Edmonton women used target pistols to apprehend a man breaking into their garage in 1995, only a public outcry kept police from following through with the firearms charges they wished to lay. New Brunswick store owner George MacFarlane, who used a shotgun to shoot at robbers fleeing in a van in 1999, was given a criminal record and ordered to take anger management courses, because he was tried by judge alone. Had he opted for a jury trial, he might have escaped conviction entirely. Calgary pharmacist Stephen Kesler shot and killed a robber who was running out of his drugstore, but was exonerated by a jury of his peers.
We can only hope Mr. Saini is similarly exonerated, for he did nothing wrong. He was entirely justified in meeting force with force to defend his hard-earned property. Too bad the powers that be no longer know that instinctively. We are a more crime-prone society because of their collective amnesia.
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