(This article first appear in the March issue of Lifestyles 55)
The concept that a person’s home is inviolate originates in British common law. In its original form the common law was intended to protect citizens not only from each other but perhaps more importantly from unlawful incursions by the King.
One of the first references in the common law in terms of the right to defend one’s home was in the Samynes case (1604) where it was stated: “That the house of everyone is to him as his castle and fortress, as well for his defense against injury and violence as for his repose…”.
In 1628 Sir Edward Coke wrote Institutes of the Laws of England. Coke coined the phrase “For a man’s house is his castle”.
Banned from entry
A man’s house is his castle and woe betide all who would enter without permission
In 1763 the term “castle” was defined by British Prime Minister William Pitt, the first Earl of Chatham, also known as Pitt the Elder, who 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.”
The evolution of the British common law in North America has resulted in the codification of many common law principles.
In Canada, for example, Section 40 of the Criminal Code outlines the rights of persons who occupy a dwelling house to defend their “castle”. Section 40 states:
40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.
Police announce themselves
In Canada the authority of occupants of a dwelling house is not absolute. Firstly, if the person attempting entry has the lawful authority to do so, the occupant is not justified in using force to prevent the entry. An example would be a police officer with a search warrant. That is why when police execute a search warrant they loudly announce their presence and make it clearly known to the occupants that they are the police. Such an announcement makes any violence directed at police unlawful. Failure to do so could give rise to a defence by the occupant that he was under the impression that a home invasion was in progress. Secondly, the authorization to use force is not carte blanch. The wording “as much force as is necessary” expresses the clear intent of the legislation that the amount of force used should be proportionate to the threat.
Many American states have taken a different approach. Thirty-one states have passed laws based on the “Castle Defence Doctrine”. Castle defence laws allow a person whose home is under attack to use force up to and including deadly force against the attacker.
The laws vary from state to state with states having either strong or weak castle laws. States with weak castle laws require that the homeowner retreat as opposed to using force, if retreat is feasible. Other states do not require retreat but allow homeowners to “stand their ground” against unlawful attack.
In all cases, the occupant must legally be in the residence, and the intruder must be there illegally. Additionally, castle laws may extend these rights to a workplace, a vehicle or other residences, as long as the occupant is legally there. Some states offer immunity not only from criminal prosecution but also civil liability in situations where the occupant used force to repel an attack.
Few criminal charges
Castle laws in many American states are relatively new, having been passed in the last 10 years. In states with castle laws there have been very few cases where homeowners have been charged criminally in situations where they used force to defend their homes.
Canada has not yet enacted American style castle laws. In Canada the presumption is that if you can safely retreat from the situation without using force you should do so.
Perhaps the law needs to change. In cities like Winnipeg, which chronically suffer from high rates of violent crime and an increase in the number of home invasions, perhaps it is time for the law to be clarified and even expanded in terms of the rights of individuals to defend their “castle”.