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The Great Gun Control Debate- 2.0

brihard

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Sorry guys, not to be a dick, but it’s pretty evident that little attention is being paid here to what the court was actually deciding on.

He was originally acquitted at trial court. This was a jury decision.

The crown appealed it to the Ontario Court of Appeal. That court held that the judge had fatally erred in their instruction to the jury. The SCC ruled affirming the same.

In a jury trial, it’s absolutely essential that the judge’s instructions to the jury accurately communicate all relevant points of law. In the case at bar, the judge failed to communicate the requirements of S.34(2)(c) of the Criminal Code. That is the section that requires the court to consider the person’s role in the incident. The jury, to make a legally correct and informed decision, needs to understand this point of law, but the judge failed to convey that to them

The courts have not held that Khill’s actions were inappropriate or illegal. Rather, they concluded from the evidence that a properly instructed jury could (not would) reasonably reach the conclusion that Khill’s actions contributed sufficiently to the escalation in the use of force that a self defense claim is not satisfied.

The order for a new trial is intended to rectify this, and to allow a properly instructed jury to return a verdict based on the facts but also with a full and adequate understanding of how self defense law applies.

In a jury system, ensuring proper jury instruction is an important safeguard. The judge manifestly failed on this one, and an appeal by crown was appropriate. He absolutely deserves a fair trial, but along with that the public interest demands juries be instructed properly- particularly in cases of literal life and death.
 

KevinB

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Sorry guys, not to be a dick, but it’s pretty evident that little attention is being paid here to what the court was actually deciding on.

He was originally acquitted at trial court. This was a jury decision.

The crown appealed it to the Ontario Court of Appeal. That court held that the judge had fatally erred in their instruction to the jury. The SCC ruled affirming the same.

In a jury trial, it’s absolutely essential that the judge’s instructions to the jury accurately communicate all relevant points of law. In the case at bar, the judge failed to communicate the requirements of S.34(2)(c) of the Criminal Code. That is the section that requires the court to consider the person’s role in the incident. The jury, to make a legally correct and informed decision, needs to understand this point of law, but the judge failed to convey that to them.
This is where we really differ.
The Jury is supposed to be random reasonable people without extensive knowledge of the law - and judge from what a reasonable person would do.

Furthermore some of the changes to the CCC are rathe rmindboggling.
  • It is crucial to note that removal of the element of "unlawful assault" does not reflect Parliament's view that the facts surrounding the instigation of the assault are not relevant or that self-defence may regularly be invoked against lawful touchings. . Rather, the requirement was removed primarily to simplify the fact-finding process, and secondarily to allow for the defence to be raised in rare cases where this it might be appropriate, notwithstanding that the person was responding to force that might have been lawful.

    There are very few situations in which an unwanted touching, which is by definition an assault, will not be unlawful. However, since the elimination of "unlawful assault" in principle permits a defensive response to lawful applications of force, a number of other features of the new law were introduced specifically to minimize the situations in which such conduct could be permitted:
    • Paragraph 34(1)(b) – the defence now requires some evidence that the accused's purpose was defensive in nature (e.g. resisting an attempt by a shopkeeper to make a citizen's arrest after a theft in order to escape would not satisfy this requirement)
    • Paragraph 34(2)(c) allows for consideration of the accused's role in the incident in determining whether their actions were reasonable (e.g. if the accused instigated the confrontation)
    • Paragraph 34(2)(h) allows for consideration of the accused's knowledge of the lawful nature of the force they are responding to in determining whether their actions were reasonable (e.g. orderlies in hospitals may have the authority under common law or provincial legislation to use force to restrain patients who pose a danger to themselves or others; the patient's knowledge that orderlies have this authority may be relevant to assessing the reasonableness of their defensive responses to such actions)
    • Paragraph 34(3) expressly limits the most likely scenario involving a claim to self defence against lawful conduct, i.e. cases involving the reactions against the use of force by the police.
But I believe Brihard is incorrect in this, as the intent of the change was to streamline the fact finding process.
Also when one looks at 34(1)(b) there clearly wasn't an intent to remove to the ability of the individual to attempt use force (Citizen's Arrest) in defence of person or property - and any 32(2)(c) was not intended to be used in the manner the Ontario Court of Appeal or SCC are attempting to suggest.



The courts have not held that Khill’s actions were inappropriate or illegal. Rather, they concluded from the evidence that a properly instructed jury could (not would) reasonably reach the conclusion that Khill’s actions contributed sufficiently to the escalation in the use of force that a self defense claim is not satisfied.

The order for a new trial is intended to rectify this, and to allow a properly instructed jury to return a verdict based on the facts but also with a full and adequate understanding of how self defense law applies.

In a jury system, ensuring proper jury instruction is an important safeguard. The judge manifestly failed on this one, and an appeal by crown was appropriate. He absolutely deserves a fair trial, but along with that the public interest demands juries be instructed properly- particularly in cases of literal life and death.
That isn't what is being done here --
 

brihard

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The jury is to be comprised of our ‘peers’, yes, but they are also expected to return a legally defensible verdict. The instruction to the jury of how to apply the law is absolutely essentially for the system to function properly. They aren’t legal experts and proper jury instruction by the judge don’t turn them into that, but it does equip them to properly and knowledgeably apply the law pertaining to the case- to make sure that the law is applied the way Parliament intended. This is what both the Ontario Court of Appeal and the Supreme Court or Canada sided with.
 

KevinB

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The jury is to be comprised of our ‘peers’, yes, but they are also expected to return a legally defensible verdict. The instruction to the jury of how to apply the law is absolutely essentially for the system to function properly. They aren’t legal experts and proper jury instruction by the judge don’t turn them into that, but it does equip them to properly and knowledgeably apply the law pertaining to the case- to make sure that the law is applied the way Parliament intended. This is what both the Ontario Court of Appeal and the Supreme Court or Canada sided with.
Neither the OCOA or the SCC appear to have looked at the intent of both the amendments to the law, and the purpose to appeals.

-- one is only supposed to overturn a lower court IF a rule of law was violated that would cause a miscarriage of justice.

- the problem is both of those Courts are looking at Paragraph 34(2)(c) in a vacuum - and not what the entire purpose of it was.
Which was part of the streamlining process for the removal of the unlawful assault portion.

What they are doing in this case is effectively undoing the law by choosing to reimagine the reasonings behind the changes.

34(2)(c) the person's role in the incident;​

This factor in part serves to bring into play considerations surrounding the accused's own role in instigating or escalating the incident. Under the old law, the distinction between section 34 and 35 was based on the defender's role in commencing the incident, creating higher thresholds for accessing the defence where the accused was the provoker of the incident, as opposed to an innocent victim. As the new law contains only one defence that does not distinguish between conflicts commenced by the accused and those commenced by the victim, this paragraph signals that, where the facts suggest the accused played a role in bringing the conflict about, that fact should be taken into account in deliberations about whether his or her ultimate response was reasonable in the circumstances.

The problem is that the OCOA and SCC are using that to change the narrative.
Investigating on ones property isn't instigating - and neither is bringing a firearm on ones own property.


There is a big difference in this case - and the Courts are not following any of the guidance in them.
 

KevinB

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More food for thought before I grab lunch.

Self Defense is an Affirmative Defense - meaning you use it at trial not before.

In this way it is similar to HR 218 down here - the LEOSA (Law Enforcement Safety Officers Act). Which allows non Federal LE to carry country wide - as well as retired members. I carried all over the US, and generally it wasn't an issue - it could have been, as in theory I could have been arrested for carrying a gun in a state I did not have a carry permit for - I would then have needed to claim that at Trail as my defense.
Most LEO - or at least the District Attorney's would kick those out well before trial - because upon seeing the facts, they where not going to get a conviction.

The same happens for Self Defense - clearly the Crown believed there was a case, or it would have been dropped upon review by the Crown Prosecutors Office - they attempted to make one, and Khill was acquitted.


The OCOA missed the entire point of the 2012 changes to the Self Defence Law in Canada.
 

Halifax Tar

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Affidavits and guns, as firearm ban still stuck in court​


A flood of affidavits from gun experts and sport shooters has risen to the forefront in the Federal Court battle over the Liberal gun ban, after the presiding judge in a 16-month legal battle laid out deadlines to a possible finish line next spring.

More at link:
 

KevinB

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The only reason they didn't ban them all at once, is they want to milk the vote cow for as long as possible.
Boiling Frog - turn the heat up gradually so it cooks in ignorance - as opposed to it jumping out of the boiling pot if dropped right in.
 

Eaglelord17

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If they ban all at once they lose their wedge issue.

Politicians tend to be fairly simple, they act towards whatever issues they think will get them elected, and don't get rid or solve those issues because how would they get elected again.

Firearms weren't a Liberal agenda for two decades until recently with polls indicating firearms owners basically won't vote Liberal, therefore they have no reason to appease them.

The smartest thing firearms owners could do at the moment is all join the Liberal party and vote to change their party policy on firearms. If you convinced even 1/5 of firearms owners to do it, every political party in Canada would have a pro-firearms stance. But unfortunately I think that is just a pipe dream. That is how you bring about effective change for us, but it has to be a collective acting on it. Otherwise it basically looks like it will be a slow decay until someone finally bans them all.
 

Colin Parkinson

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While the idea might work, the problem is the Liberal Party machine is adept to nullifying anything it does not like from the unwashed masses, so regardless of what the result of the vote, they will sideline it if they don't like the result.
 
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OldSolduer

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As others have more eloquently said, this "Liberal" Party is not the Liberal Party of the past. Its aggressive and elitist. And I don't think for one minute our current PM has the brains to put this all together.

But as a past PM said IIRC "the Liberal party is just a means to an end".
 
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Jarnhamar

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Gotta love this guy. He puts a round into someone killing them due to him pointing a gun at someone and pulling the trigger for some reason, after series of failures leading up to that point, in an environment allegedly full of safety concerns and violations. His answer is to have police on set to monitor safety.


Alec Baldwin calls for police to be on sets with guns​

 

Fishbone Jones

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Gotta love this guy. He puts a round into someone killing them due to him pointing a gun at someone and pulling the trigger for some reason, after series of failures leading up to that point, in an environment allegedly full of safety concerns and violations. His answer is to have police on set to monitor safety.


Alec Baldwin calls for police to be on sets with guns​

He keeps trying to get out ahead of it before the lawsuits start. His lawyer has told him a number of times to STFU, but being the typical liberal socialist, he just doesn't get it.
 

Haggis

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Gotta love this guy. He puts a round into someone killing them due to him pointing a gun at someone and pulling the trigger for some reason, after series of failures leading up to that point, in an environment allegedly full of safety concerns and violations. His answer is to have police on set to monitor safety.


Alec Baldwin calls for police to be on sets with guns​

Sigh....

This podcast from Slamfire Radio features a Canadian movie armourer describing, in excruciating detail, the steps that he follows and what Baldwin's crew should've followed.

In short, after listening to this, any sane person would say the police on Baldwin's set should be arresting a few folks for criminal negligence causing death.
 
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