Turning self-defense into a criminal act: The grey area of self-defence: Two men may face charges

Natalie Alcoba, with files from Kelly Patrick
National Post
Nov. 26, 2006

Don Shaxon was drawn to the darkest, quietest part of his home by his barking cocker spaniel.

The 30-year-old father of two thought he might have locked the cat in the basement, as he bounded down the stairs and rounded the bend into the laundry room early on Sunday. A dark figure wearing a hunter's fur hat emerged from the shadows; Mr. Shaxon assumed a defensive position and started swinging.

"I got him on the ground," the Burlington man recounted yesterday. "We stopped fighting for a second and I was standing overtop of him and I said: 'Don't move. The police are on their way. I've got two kids in the house. If you move, I'll kill you.' "

Mr. Shaxon did not kill him, but he delivered a serious beating on the 16-year-old boy, who later told police he was so inebriated that night he "mistakenly" stumbled into the wrong house.

Now, it turns out, Mr. Shaxon may face criminal charges for his defensive manoeuvres.

And his isn't the only recent case of a man visiting violence upon an intruder -- the fate of an Alberta man who this week stabbed a robber to death while trying to protect his girlfriend is also still to be decided.

Police in Calgary have not yet laid any charges against the man because they believe he acted in self defence. But the case has been handed over to the Crown prosecutor for review. A 16-year-old was stabbed to death in the Falconridge neighbourhood in north east Calgary on Monday night after he tried to rob a man and his girlfriend, who were standing at a bus stop. The man, who is in his twenties, turned himself in on Tuesday.

Sanjeev Anand, a University of Alberta law professor who is working on a textbook about criminal law, says that even the Supreme Court admits the Criminal Code provisions outlining self-defence are confusing.

But he said the provisions can be distilled down to two basic principles: self-defence applies when a person has a reasonable belief he or she is in danger of serious injury or death and when the force he or she uses to repel an attack is not "excessive."

"When Parliament uses the word 'excessive' it doesn't mean you have to measure to a nicety the amount of force you use," Mr. Anand said.

"So for instance if someone is coming at you with a knife and saying 'I'm going to kill you,' you don't have to shoot them in the hand. You can shoot them in the chest."

On the other hand, if a victim knocks out an assailant and proceeds to kick the attacker to death, that could be considered excessive, Mr. Anand said.

In the Calgary and Burlington cases, Mr. Anand said it would likely be left to a jury to weigh whether the force each man used crossed the line.

"Essentially what it's going to come down to in both these cases is was the force used extraordinary? In other words, was the force used clearly excessive?"

Mr. Shaxon, a venture capitalist who founded organizedinvesting.com, and his wife, Melissa, were getting ready to go to bed when they heard a group of six to 10 young men fighting outside their Centennial Drive house. With five-month-old Summer and 10-year-old Brittany sleeping upstairs, the couple slipped outside and watched the crowd move down the street. They went back in and minutes later, from the depths of the basement, Mr. Shaxon yelled out: "Melissa, call the police. Someone is in our house."

A Halton Regional Police spokesman said officers responding to the call found a 16-year-old youth who was in an "intoxicated state."

Mr. Shaxon said he heard the young man admit to having a "few shots of vodka" and a criminal record.

He does not buy the young man's explanation: that he mistakenly wandered into the wrong house while he was looking for a party next door.

The 16-year-old was charged under the Provincial Offences Act for underage drinking and released to his mother. The Criminal Investigation Bureau is reviewing whether further charges are warranted.

"Anything and everything is still open for consideration and review," including charges against the homeowner, said Halton Regional Police Sergeant Peter Payne.

It is a possibility that seems remote to Mr. Shaxon, but is disconcerting all the same. He hopes to amass a list of supporters (who can e-mail his Web site) if he must defend his actions in court.

He is already having to defend them in Burlington. While he thinks 90% of people "are fully behind me," others consider him to be the "bad guy" for having beat up a minor.

"There are some people out there saying that I belong in jail," said Mr. Shaxon, who in July helped save the life of a man who had fallen over a balcony by blocking a bleeding artery. He addresses his critics with this question: "What would you do in the same situation?"

"You see someone who doesn't belong, they come at you, your wife is three to five feet behind you, instinct takes over."