The householder defence in Canada and England and Wales : between proportionality and penal populism

This dissertation investigates the householder defence's proportionality of force through both theoretical and penal policy lenses. The householder defence deals with a dwelling-house defender's use of force against an invading aggressor to their own home. The householder defence can be used to shield a defender's conduct from possible criminal liability linked to their use of force against the aggressor, by justifying the defender's defensive conduct. Answering how a defender's use of force against a dwelling-house aggressor is justified and how this protected use of force should be regulated with consideration for proportionality are this dissertation's primary research objective. Before turning to this dissertation's chosen jurisdictions and penal populism discussions, the householder defence and its justificatory relationship to force will be thoroughly introduced via criminal law theory. In this theoretical chapter, the most significant criminal law theoretical approaches to the householder defence and its authorization of force will be discussed, namely: choice-of-evils theory, forfeiture theory, rights-based theories, and communitarian theory. The jurisdictions for this dissertation's exploration of policy reform of the householder defence are Canada and England & Wales (E&W). In Canada, the entirety of the self-defence and defence of property provisions of the Criminal Code were replaced by new sections 34 and 35 in 2012. This reform was enacted by Bill C-26: The Citizen's Arrest and Self-defence Act and positioned the householder defence as unanchored and undifferentiated from the general law of self-defence. In E&W, reform of the householder defence was done through the Crime and Courts Act 2013. This 2013 reform of the householder defence created new subsections within the pre-existing section 76 of the Criminal Justice and Immigration Act 2008, which deals generally with defence of person. The cases and public discourse motivating reform, the relevant Parliamentary debates, and finally the receiving case law for the 2012 and 2013 reforms will be organised and discussed to present a chronological legal reform story of the householder defence for each jurisdiction. Notably, the notorious cases of both Tony Martin and George Stanley will be directly dealt with as to better contextualize the reform processes and penal climates in Canada and E&W. The importance of the proportionality of force requirement for the householder defence will also be explored through an analysis of penal policy reform dynamics. In particular, the last part of the dissertation will present a substantial account of penal populism to explain and make sense of the popular reforms passed in Canada and E&W. It will be shown how the rhetoric about a new understanding of the proportionality of force requirement for the householder defence was critically influenced by penal populist discourses. Finally, some recommendations for reform and future research are put forward.