Noah Weisbord leads a Coffee Chat on Indigenous issues at Queen's Law on February 8, 2019.

Transcript:

00:00 Noah Weisbord: We have two orders of business for today. The first order of business, reasonable in the circumstances. So we're gonna talk about the new Canadian Law of Self-Defense, which I think is dangerous, it's underestimated, I think it's arguably broader than the Florida Stand Your Ground Law that has resulted in all sorts of disastrous inequalities. And we're gonna speak about the new Restorative Justice course, which is gonna be next year. And I wanted to get people's views on how it's looking for the design of it and if you'd want something included that I don't have in there, I think it would be a good time to speak up and to see what people would like in there, if you're planning to take it.

00:49 Weisbord: So we'll tell you a little bit about the new course. It was supposed to be this year, but I need to teach another section of Crim, 'cause Professor Kelly was on leave. So it got shifted to next time. So basically, what I want to... This piece that I'm gonna talk about is coming out soon in the McGill Law Journal. Oh, hi.

01:12 Speaker 2: Hi, sorry.

01:13 Weisbord: Thanks for coming. Hey, welcome, I'm glad you came. Yeah, we're just starting anyhow. I hope your talk went well just now.

01:23 S2: Yeah.

01:27 Weisbord: So the piece is a warning. There's not enough data, so far, to see how it's gonna play out with the self-defense expansion. In 2012, Canada kind of changed its self-defense law. It was supposed to just be a simplification of the old law, but actually what happened was that in certain subtle ways, it was made even more expansive, arguably, than the Florida Stand Your Ground Law. What I did was I tracked the history of the development of Florida's expensive self-defense law, which allows for all sorts of do-it-yourself kind of uses of force in order to protect your person and your property. And I traced it, historically and conceptually in relation to Canada's law because they stem from the same source, so they all come from common law rule which is basically, that self-defense has to be necessary and proportionate. And Blackstone built in a retreat-to-the-ditch requirement, so that the common law of self-defense required anybody who wanted to use defensive force to retreat to the wall, or the ditch, before they were allowed to use defensive force.

02:41 Weisbord: And there was an exception that was built in by Edward Cook, which was, unless you were in your home, and there, there's something called the Castle Doctrine. The Castle Doctrine allowed you to use force in your home, and there was kind of a presumption that you were allowed to do so unless it was showing to be that it wasn't necessary. The starting point was that you had a special right to defend property in your home. The basic underlying values in the self-defense law is the preservation of human life. But what we got over time in the US, and now recently in Canada, in 2012, was the injection of a competing kind of underlying value. Underlying the new self-defense law was the protection of property, liberty, and honour. I call this kind of the True Man Formula because the True Man was the pivotal case in Irwin, Ohio where this wild west mentality seeped into American law. This was in the late 1800s. And then Canada had to decide whether they were gonna incorporate it into theirs, and to allow people to stand their ground if they were somewhere in the public space where they were allowed to be or not.

03:57 Weisbord: Okay, I'm not gonna go through the whole history and conceptual architecture of the new self-defense law, but there's a few things that I wanna tell you which will lead to the key cases that I think are the most important and the most basically dangerous in Canada. And there's three cases. And Don put me on to the scent of the first one, which was Cormier. In the Cormier case, this was one of the first major kind of appeals cases related to the 2012 self-defense law in Canada, defensive property morphed into defensive person, and the court said that this new 2012 law was not actually just a simplification of the old law, it was an expansion of the old law, it was a conceptual expansion. And that Cormier, who began by defending... So he's in his house, he's in his dad's house, some people come and they're threatening him, they're saying that he owes them money. They're threatening him, he doesn't open the door, they go away, they come back a few hours later and they say they're gonna smash every window in the house. They start threatening, Cormier and the father and somebody else come out of the house, apparently somebody swings a pipe at Cormier, Cormier stabs him to death. And then basically Cormier is found guilty, he appeals, and the appeal is on the basis of that maybe the jury was misled by saying that he had to stay in the house before being able to claim self-defense.

05:34 Weisbord: So it was a test of Canada's new self-defense law, and the question was whether he was allowed to actually leave the house and put himself in somewhere in danger, and whether his reactions were reasonable in the circumstances. And Cormier was acquitted on appeal. So, that's one case. The second case, of course, is the Stanley case, and this is the case that I think is perhaps the most unsettling in the sense that it shows that Canada's 2012 Self-Defense Law, which I haven't really got into explaining that well, but it shows another transformation of the law and how these various defenses of property and person can blend and morph into something even more accident and become kind of this new-fangled defense.

06:23 Weisbord: So, when I first was doing this research, this was before the Stanley case happened, it was in November, this was my job talk last year at Queens. And the question was basically, How is Stanley gonna raise self-defense in this case? And in the end what happened was that rather than make a complete self-defense case, he built, I think what Kent Roach has called, a phantom self-defense case, where rather than having to prove the elements of self-defense, the crown, the defense, and then the judge agreed that he was lawfully defending property. That morphed into him defending person because he thought his wife was under the tires of Colten Boushie's truck, which made him reach into the truck to shut the ignition, whereupon there was an accident, or so he claims, when his gun went off and he shot and killed Boushie with a shot behind Boushie's left ear, which exited through Boushie's neck.

07:26 Weisbord: And this gave rise to a whole bunch of evidentiary issues about whether the hang fire witnesses should have been allowed in, but there was no appeal. So you have a morphing of self-defense, from defense of property, defense of person, to accident. From Cormier to Stanley to Khill, the third case I'm gonna talk about briefly today, which is a Hamilton case. Peter Khill was at his house, it was late at night. He and his wife hear something in the driveway and they look outside and it's Styres, who is on the passenger side of his pickup outside, rifling through the glove box or something like this. So rather than call the police, Khill, who's a military reservist, goes outside, sneaks around with his shotgun, he says, "Hands up", to this indigenous guy that might be looking in his glove box or trying to steal the truck. But he's on the passenger side. Styres turns around, Khill shoots him with the shotgun, kills him almost instantly, and then claims self-defense.

08:38 Weisbord: Well, in order to make that self-defense claim, the actions had to be reasonable in the circumstances. That's why this talk is called Reasonable in the Circumstances. Was what he did reasonable in the circumstances? So what are the circumstances that he brought up? Well, that he was a military reservist and that his training, and experts were brought in to talk to this, meant that he's not the kind of guy that's gonna retreat and call the police on the telephone. He acted to neutralize the threat, is how he put it. And then the jury assessed whether that was reasonable in the circumstances and they found, yes, it was reasonable in the circumstances. That he was concerned, this was a guy whose a particular mindset, from a modified objective approach that the reasonable military reservist might not have run in and called the police, he might have actually just neutralized the threat.

09:36 Weisbord: So that case now is on appeal to the higher courts, so we're gonna see what happens there. I didn't list in this description the other case that I'm not gonna talk about in this context so much, but I think it's very important that the accident defense came up again. And this was Barton, which was a case that's gone to the Supreme Court now. This was a brutal homicide case and Barton is arguing that the sex acts that resulted in Cindy Gladue's death were accidental, which makes me wanna probe the connection between self-defense and accident in Canadian law, because I have a suspicion that the defensive accident is used in a potentially biased manner when it comes to indigenous victims, and possibly with white accused.

10:35 Weisbord: So that's a hypothesis that needs to be tested before I go and start making claims about it, but... So I'll just tell you quickly how the Canadian Law of Self-Defense changed in order to get us here to these three cases that I think are harbinger of something very unsettling to come in Canada.

11:00 Weisbord: What happened in the United States was that, basically there was the same kind of common law of self-defense that was a law that's bounded by necessity. So you could only make the claim of self-defense to the extent that what you did was necessary. Necessary, proportionate, and this requires, in much legislation, retreat requirement, and there was the narrow exception for the Castle Doctrine. So we had that in the US and in Canada. And in the US, you had, in the late 1800s, at the end of the Civil War, all of these African-American men that were now free, and this was giving rise to stranger danger, as they call it in the American histories; concern that basically there was gonna be encroachment. And that resulted in an increased, for example, of lynchings of black men accused, most often with trumped-up charges of having sexually assaulted white women.

12:05 Weisbord: So these lynchings were built on the self-defense premise, that they were actually defense of others, that they were on the basis of trying to protect white women from these newly freed slaves that were encroaching and dangerous. At the same time, the US government was moving westward and expanding into indigenous territories and meeting resistance over there as well, which gave rise to this idea that if you were in some place that you were legally allowed to be, that you should be able to claim self-defense and use deadly force in response. So there was these two kind of confrontations with these stranger groups, they were encroaching upon the dominant group at the time, which created an impetus for doctrinal expansions in the law of self-defense.

13:00 Weisbord: So you got this Erwin versus Ohio case, where it was said that a true man, meaning not an Indian, they actually say it in the judgment, who's somewhere where they're allowed to be, doesn't have to retreat before using force in self-defense. So you had this major expansion of this idea that you can defend property, liberty, or honour in self-defense. It wasn't just defending your life because there was a necessity of doing so. The retreat to the ditch part got eroded. But that was a blip. That period was a blip. And much of the common law approach to necessity came into these various state's criminal provisions in the United States.

13:45 Weisbord: So for example, in Florida, this was a justification defense, self-defense requiring necessity, proportionality, retreat, until about 2005. And in 2005, there was a few things that had happened. First of all, the 9/11 attacks. People were increasingly concerned in the United States about encroachment and terrorists and this movement towards this stranger danger that was the provocation for previous doctrinal expansions. There was a big hurricane in Florida which destroyed a lot of people's houses, and I forget the name of the man who moved into a mobile home after his home was destroyed, and an emergency worker was coming to fix something in the house. And the guy accidentally thought that the emergency worker was an intruder and he killed him. And he claimed self-defense, and he was acquitted because his fear was considered to be reasonable. And this was used as the impetus because people were afraid of looters even though it wasn't really happening at the time to expand the self-defense law in Florida.

15:04 Weisbord: And so Marco Rubio and Jeb Bush were the main proponents, backed by the National Rifle Association and some other conservative groups. And they pushed for this expansion where somebody who is allowed to be somewhere, who was not the initial aggressor, who met some other criteria as well, didn't provoke the attack, wasn't required to retreat to the ditch. They could stand their ground and use force meet force with force to defend themselves. So, this created what became known as the Stand Your Ground Law. In certain circumscribed situations, you didn't have to retreat to the wall before shooting somebody in self-defense, because of this funny story about looters that were around after the hurricane and people needing to protect themselves because the police weren't always available.

15:58 Weisbord: So that resulted in all sorts of disparities in the application, and there's a number of large-scale studies in the United States. I think 30-something jurisdictions now have this law. It started in Florida and then it spread all over the country.

16:15 Weisbord: And basically African-Americans that claim stand your ground are less likely to succeed. White firearm-carrying men who kill African-Americans are more likely to get off the hook, like massively more likely. These are like the American Bar Association are doing these studies, or other large-scale studies. Tampa Bay Times has one of the best studies, includes over 200 cases in Florida and it shows patterns of discriminatory application.

16:47 Weisbord: So, my worry is that now we have this Canadian law, where the impetus came slowly over time, we have our own story. It began with Lavallee, I would say. I started earlier in the article, but the Lavallee case was a case where Lyn Lavallee had been beaten by Kevin Rust, her common-law partner brutally for a long time. And then one night, they were having some people over at their place, Lyn Lavallee is threatened by Rust in the bedroom. He says that he's gonna come back later to kill her, if she doesn't kill him first. He's walking out the door, she shoots him in the back of the head, and claimed self-defense. And then the question is, if the attack is not imminent, whether self-defense claim exists. We have this basic common law necessity requirement in Canada up until that time. And the question is whether it's gonna be considered necessary what she's done.

17:51 Weisbord: So in order to consider it necessary, it goes all the way to the Supreme Court, the Court has the overrule an existing decision called why not, which basically has a tighter eminence requirement. And Bertha Wilson brings in all of this excellent, interesting expert testimony about how battered women react in these situations, and what she would have been able to perceive. And the court decides that not the battered women get an excuse, but the battered women know what's reasonable in the circumstances, because of their special predicament, that they know because of the pattern of interactions of these abuses that what they have to do to protect themselves occurs not necessarily when the guy is already upon them and attacking.

18:46 Weisbord: So in the 1990s, you get a more subjective-ized... It's actually not a good way to put it. You get a more modified objective approach to determining if what she did was reasonable in the circumstances. And the idea was that self-defense would expand to include different groups that don't behave in the predictable ways when they're behaving reasonably well under attack. This is kind of what Lavallee did. So that's great, that's laudable. The problem is that it opened the flood gates for reasonable in the circumstances to be all sorts of other things. So we think that they had the circumstance of the accused more and more would be great. But then when you start to think of it in terms of a firearm-carrying military reservist claiming in the circumstances of his training, as a military reservist that should be taken into account in determining whether his actions were reasonable. It starts to look a lot less defensible, in a way.

19:51 Weisbord: So after Lavallee in 1990s, self-defense was still a justification, meaning necessity, proportionality, were still the underlying themes under there. Then in 2009, the incident that triggered Canada's doctrinal expansion happened in Toronto. This was at the Lucky Moose Food Mart, which was in Chinatown, a shop in Chinatown. And the serial shoplifter, Anthony Bennett goes in, he takes some flowers and this is all captured on video, he goes away with the flowers on his bicycle and he comes back about an hour later, possibly to shoplift again, and David Chen and a few other people working there, chase him down the alley, tackle him, bind him up, throw him in a truck, and the police come. So he's prosecuted for shoplifting, but he presses charges against them for assault. And they claim that actually, this was a citizen's arrest. So, that would all be fine except that under Canada's Citizen's Arrest Law you need to have done the arrest while the crime was happening or immediately after. But this happened an hour later.

21:03 Weisbord: So the judge tried to interpret the law and read it such that... Read it expensively, said the crime was ongoing because Bennett went away and he was still planning to shoplift upon his return. So David Chen became a folk hero, he was in all the newspapers and all the politicians wanted to be with him. And politicians from all parties, lawmakers, put forward legislation that would expand the Citizen's Arrest Laws. So it was kind of a big topic at the time, and everybody was trying to appeal to these kind of small business owners, Asian or South Asian descent in the Toronto area. Especially the conservatives were having a problem appealing to immigrants.

21:53 Weisbord: So a lead strategy came out of the conservative camp at the time, and it included a phrase called, "Very ethnic swing ridings", where the strategy was going to be to try to appeal to these shopkeepers of Asian, South Asian descent, use money from stable conservative swing ridings out west, to fund micro messaging and polling going on in the greater Toronto area, to see what would appeal to these people in order to win their majority. And David Chen of course, was one of the big things that was in the news at the time, so the conservatives embraced him. And the justice minister proposed legislation to expand Canada's Citizen's Arrest Law. It worked. Harper was re-elected with a majority and one of the first things that he did was to try to expand the Citizen's Arrest Law, but what he also did was he threw in a bunch of proposals to expand defense of property and self-defense, which completely went under the radar.

22:55 Weisbord: So you had some debates in Parliament, but the debates... Everybody ended up being supportive of this new legislation that was gonna simplify the old self-defense law, which was actually very complicated and a big mess. So the idea was gonna make it simple and make it to three steps. Was there a reasonable perception of force against yourself or another person? Was the response actually, subjectively a defensive response? Or was it a response that was meant to be kind of in retribution? So was it retaliation or was it actually defensive? And the third factor was, Was the action reasonable in the circumstances? And reasonable in the circumstances is not Was the action necessary, it's Was the action reasonable considering all these nine factors that get listed.

23:47 Weisbord: And these factors don't include retreat to the wall. They don't include proportionality. Actually, there probably is proportionality in the defense of person one, but it's a factor to be balanced among all these other factors. So some of them are, any history of interaction between the parties, person's role in the incident, pretty amorphous. What you got was a jury that would be deciding whether, for example, it would've been if Gerald Stanley's defense lawyer put this defense up there, explicitly, as he should have. The question would have been, Was Gerald Stanley's actions... Were the actions reasonable in the circumstances? Not... It would be up to the decision, a factual finding of the jury rather than a legal kind of instruction from the judge. Requirements of proportionality, necessity, what all of those things mean.

24:55 Weisbord: So what would began as this idea of including protections for another vulnerable Canadian group, Chinese shopkeepers in the Greater Toronto Area, Lyn Lavallee, battered women in 1990, being able to use self-defense in a way that the reasonable man might not actually use it evolved into something more. It evolved into Khill using the argument to say that what he did was reasonable in the circumstances. Furthermore, the defensive property provision, this is where I'll end, I think, on this, before I open the discussion. The defensive property provision was even worse. The defensive property provision didn't even have, in the new Canadian law, any factors to consider.

25:47 Weisbord: It just was your defensive property kind of reasonable in the circumstances. That meant that the classic idea that you couldn't use deadly force to defend mere property, which come out in Canadian and American law, maybe was going to be superseded by this new law. It's possible that courts will take into account the old jurisprudence when interpreting what it means for it to be reasonable, it's also possible that courts will not, and juries will not be that interested. So they proportionally use of force to defend property may be a thing of the past. We're gonna have to see how the courts deal with this provision. And people might start to be able to get off the hook. Like Khill did, for protecting mere property.

26:36 Weisbord: If that doesn't work, then of course you can do this property morphs into defense of person. And if what looks to be defense of person seems to be unreasonable in the circumstances, then you can tack on accident. So that, "Okay, I was acting, defend... I had reasonable fear of force, I was acting with the subjective defensive purpose. What I did might have been unreasonable, but it was really an accident, it was... Things were crazy and they got out of hand, and this person got killed." So, I'm worried that there's gonna be kind of the disparate effects, these biased effects that swept all over the United States, are now coming to Canada.

27:19 Weisbord: Our culture may be different, but it actually may not be that different. You see that there's kind of big, I call them climates of fear in the paper, where the use of force is more likely to happen because people are prepared to preempt each other's preemptions. So they're worried about being attacked, so they prepare themselves by arming themselves and by getting vigilant. And then the other person sees that person preparing themselves, becoming vigilant, and then they prepare themselves. So in these climates of fear, that's where I'm worried about these weird applications of the law. I mean, traditionally the common law allowed you to do it, but it had to be proportionate. So if you're gonna defend the property, you couldn't... The guy stealing... The classic story that's told, if someone's stealing an apple from the orchard you can't go and kill them, it has to be you take the apple away from them or something that seems proportional. So, there are protections on that, and you're allowed.

28:21 Weisbord: But what happened in Canada was that it's now become completely unhinged from any legal principle, and it's just whether the finder of fact considers what you did reasonable in the circumstances.

28:32 S?: [28:32] ____ objective.

28:32 Weisbord: Right. Well, you remember this McConnell case, in the prisons where experts were called in to say that this prisoner could have had a reasonable fear which he responded to in this reasonable way because the context is completely different from what we're used to. I think that this is kind of along the trajectory of that, is that you're seeing that people in these different kind of climates of fear are being able to rely on this thing and they're calling in experts in order to say how the reasonable whatever they are would react in that circumstance. And this Khill one really pushing it. KHILL, I mean it's unfortunate, mixed the name, but, it's kind of pushing it. So now this one's on appeal. So we're gonna see whether the courts above draw the line.

29:21 Weisbord: Absolutely, I couldn't agree more, but we're gonna have to see whether the courts draw the line as well. Maybe they're gonna say... Maybe they're gonna subjectivize it in a way. Maybe they're gonna say that actually this is not a reflex of response, but this is an expected response of somebody like this. In court, the Crown said, "Actually the reasonable military reservist should have known that it's dangerous to go confront somebody in your driveway with an armed shotgun like this. You should've called the police." But it seemed to resonate with the jury in some way.

30:00 Weisbord: I liked Lisa's answer, actually, and I think you agree with this, is that reasonable in the circumstances means the external circumstances.

30:09 Weisbord: Yeah, I'm sympathetic to him. I'm worried about the argument. So if the appeals court in Khill does what Lisa is suggesting, which is to draw the line and say, "We're not gonna take into account that many personal characteristics, or this was never meant to extend to reservists who are kind of attacking and confronting people that are rifling through their glove boxes", then I'm a happy camper. Then I'm like, "Okay, there's some limits that are getting drawn here." The part that I really don't like is not about... Okay, about the objective and subjective approach. Modified objective, I'm okay with. Not too modified, but somewhat. The thing I'm really worried about is the move from necessity as the basis of self-defense to reasonable in the circumstances.

30:58 Weisbord: Why is that? Because it hands the determination off to a jury without any guidelines where hidden bias can be hidden. It's no longer a legal question when you say, "Was this reasonable in the circumstances?" It's for the jury to assess with all these nine factors, and whatever their biases are, if the indigenous guy was stealing the farmer's ATV or whatever, and there's tons of thefts in the area now. And it's a jury of the peers, so these people have been exposed to it.

31:27 Weisbord: Yeah, yeah. I mean, he shot above... Stanley shot about his head twice. Everybody agrees to that. And then everybody was fleeing. The kids were fleeing. Why did he have to approach the truck, reach into the truck with his left hand, with the gun to Boushie's... Behind Boushie's ear? Why was that necessary? I mean, in this case, there could only be an accident if everything that what Stanley had done was reasonable in the circumstances until then. Why? Because for defense of property. So, the judge, both lawyers agree the shooting above his head was reasonable in the circumstances. I'm not so sure about these warning shots. And whether that should... I think that should be considered to be potentially a crime in future situations. Okay, that is reasonable. It's reasonable, but he go... He walks over to the car. Is that still defending property after he shot the gun in the air, he's walking over to the car? What about when he's walking in front of the car? Remember, he's already smashed. His son already smashed the front window of the car. Is that reasonable in these circumstances?

32:41 Weisbord: And then at a certain point, it morphs without there being an explicit argument into self-defense, 'cause you're not supposed to kill somebody in defense of property. So was it reasonable in the circumstances that Stanley thought his wife was under the tires? The only way that this accident could have been a real accident was if everything up into that point, until the gun was to the head of this kid was reasonable. If not, it's manslaughter, it's either negligent homicide, where there's a predicate offense, such as assault or dangerous handling of a firearm resulting in death. There was no accident in defense without defense of property and self-defense, defense and that's what worries me.

33:25 Weisbord: Yeah, that's the problem, because for example, Scott Spencer, in his opening statement, the defense lawyer, in his opening statement says, This is not a self-defense, but there's a self-defense factor. He says in the opening statement. Then we have the Chief Justice Popescul, and Spencer and The Crown agreed that it's defense of property, explicitly in the judgment. So they say it's defense of property. Then they don't put defense of person to the jury. They just skipped that phase. But without defense of person, it's unreasonable to kill somebody in defense of mere property under existing Canadian law. Couldn't made the self-defense, couldn't have made the accident argument without defense of property and defense of person, it would have been manslaughter or murder, if it was deliberate.

34:17 Weisbord: Right. The danger of no proportionality test is that you end up like Trayvon Martin and George Zimmerman case in Florida. There was an escalation and then there was a shifting... So, the argument went, of Zimmerman, the defendant that, Okay even if he had started off as the person who pursued Martin and followed him around in the shadows in this rainy night, and when they confronted each other, it shifted. That Martin then became the aggressor and that maybe Zimmerman became the aggressor and then what Zimmerman is arguing is that things went south. They're on the ground, rolling around on the sidewalk. Martin is a big boy and he's above Zimmerman. And even if Zimmerman was the original aggressor, Martin became the aggressor and then Zimmerman shoots him with a gun.

35:14 Weisbord: So what you have is people talking to each other, people shoving each other, they're on the ground, where Zimmerman is being battered on the sidewalk. So that force is escalating, like the way this would have been analyzed is, who is the attacker and who is the defender at which moment? And when somebody escalates the force from it being a fist fight to a knife fight, then that person that pulls the knife can then become the aggressor at a certain point. You've gone beyond proportionality.

35:42 Weisbord: So self-defense is no longer kind of viable as an option. Then when the next guy pulls out the gun, then it can shift back, at least in the States, that's how the analysis is made. So that's why all of that kind of thinking gets mushed into a general reasonable in the circumstances analysis now, with no guidelines. That's my worry. Well, back in the day... So in this, I think it's called Erwin, or Edwin versus State, is 1880s case. That's when you have this true man statement coming out. And no, it's not the same now, they got rid of all of that racialized language. The effects are still racialized, that's what they're finding when they do the studies.

36:31 Weisbord: Canada didn't take it on. So John A MacDonald, at the time was aware of these cases and there was a push and he was a proponent of more gun rights, John A MacDonald, 'cause there was incursions remote laws from the South, and they were moving further north and west to the Dominion and all that, to expand it, and try to expand Canadian law, but they rejected it and the Canadian expansions of self-defense were not the result of this true man idea, but the results of... Actually in 1892, an attempt to simplify the law, just like in 2012. So the idea was, we have this complicated... We have this common law, but we're gonna... Like Jeremy Bentham wanted, codify it and make it clear and understandable for the regular people. And then you got this specific codification from 1892, from the James Fitzjames Stephen draft, which made it kind of rule-based, and if you were the initial attacker, then one rule applied, if you were innocent and you were attacked, then another rule applied, all these stuff.

37:37 Weisbord: And then that got more and more complicated over time with various interpretations. In 1955, there was a further breakdown by the legislature of it. So it wasn't through this kind of racist, racialized thinking that self-defense expanded in Canada, it was more the legislature trying to simplify the law, the courts trying to make leeway when they found injustices, like in Lavallee and other cases like that. Until we end up with this 2012 thing, where you have this funny racial dynamic around the Chen case, the shop keeper, with actually, it was an African-Canadian Anthony Bennett, the guy who was arrested was an African-Canadian. We don't treat Chen like a George Zimmerman or Gerald Stanley, we're treating him like a hero. Even though Anthony Bennett is an African-Canadian that's getting arrested by force for stealing flowers an hour ago.

38:40 Weisbord: So we finally get this racialized dynamic kicking in in Canadian law in 2012. We pretend that it's about protecting Chen and shopkeepers that are vulnerable, but if the US situation is any lesson these things usually expand to the aggressors and the people that are carrying the firearms and own the property. That's my warning in the paper.

39:02 Weisbord: So the thing that I wanted to do is, before we wrap up, was to check and see whether as we design this Restorative Justice course, there's stuff that you guys wanna add or modify. I've been working on it with Jennifer to come up with very kind of... A well-structured seminar, and so we thought we'd just tell you what we had lined up, and then you tell us if you think that there's some other stuff that you'd like to be in there, or just think about it and email me after. I wanna make sure we got everything. You wanna tell them?

39:39 Weisbord: I thought that people would write... People do research projects of their choice. We could add in simulations, for example, there's therapeutic kind of... When you have social work school, sometimes they'll be one-way mirror and they'll be kind of you'll be with a ear bud and with, for example, a family, that it's got a certain type of problem, multi-generational sexual abuse or something like that. And you'll get some instruction from the other classmates and the teacher about how to do therapy with these people, and that's how you kind of learn to do it. Or you'll do it and then you'll be video-taped and people will comment on it. We could add in some simulations for restorative justice practices, if we can think of how to do it. We could potentially visit Akwesasne to talk about the Akwesasne Court and maybe in having some success. We could talk about our papers and hand them out to each other so that you get commentators that help you to make your paper better.

40:58 Weisbord: We could do a lot of different things, but if you think of anything going forward as we leave here that you want in there, or that you wanna bring up now, it's a good time to add it. We have time to flesh it out a bit more. Yeah, yeah, that's a great idea. Yeah, we have to have...

41:13 Weisbord: Yeah. So we have to introduce a critical perspective early to all of this stuff, to the Gladue writing, but also to the... Big theme is the problematic power dynamics in restorative justice. I saw this really in Rwanda where you have only a couple of survivors left of the genocide, they're testifying with their sexual assaults in front of the community, so they're required to by law to testify that say what they did, and then the community ridicules them in front of everybody. This woman's been traumatized, and she's attacked again, in the course of the justice process. This is gonna be a big learning experience. I don't know much about the Canadian system either, so I'm going in here too, with minimal knowledge of how it works here in Canada. So that's what... That would be great actually, to get some of these people to speak to the class. Yeah, Lisa?

42:07 Weisbord: The question is how I wanna do all these experiential things but how is it gonna go with... People are gonna be also writing a paper. Maybe the paper will be like a shorter... I mean, you wanna come out with something where you can actually use it, or publish it. Yeah. The play-acting thing sounds cheesy but I've seen it in social work school. If it's done properly, then it's really revealing. And then the next step, of course, in social work school was you're actually there with families in the Family Therapy Clinic at McGill, where they're coming for therapy. And when you have more experience, you have the one-way mirror and your bud, and then people are giving you advice as you do your first therapy session. Thank you guys for coming. It's really nice of you to come to this and give advice and listen to my talk.