What rights do you have to defend your property in Canada?

Article originally appeared in: Global News Canada
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What rights do you have to defend your property in Canada?

A recent incident in Okotoks, Alta., in which a homeowner was charged after allegedly shooting a trespasser on his land, has raised questions about what actions homeowners can legally take to protect their property.

Global News spoke with two legal experts who said there’s no hard and fast rule when it comes to defending property and that “each case is different.”

The Criminal Code does allow for homeowners to use “reasonable force” when defending their property, after the former Stephen Harper government brought about changes in 2013 intended to strengthen the Code’s self-defence provisions. The changes allowed homeowners “more leeway in terms of defending themselves and their property.”

But Greg Dunn of Dunn & Associates said Tuesday that despite the recent high-profile trial of Gerald Stanley in Saskatchewan, there hasn’t been much opportunity for judicial consideration of these self-defence provisions following the legislative changes in 2013.

 


  

What rights do you have to defend your property in Canada? | Global News

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Rob: Alright, well look, we had quite a conversation about this yesterday and I suspect there is going to be a lot of reaction now that we’ve got, maybe the predictable. I don’t know, I’d hoped it wouldn’t come to this, but again, it all comes down to the specifics of the incident, so, RCMP in Okotoks have laid charges against two men - one of them apparently a would-be car thief, or some kind of a thief, the other, the homeowner, who was being victimized here. Global News reporter Sarah Offin with the details.

Sarah: Rural homeowners say this is a growing problem in communities around Calgary and across the province. Taking a look at the stats from the MD of Foothills from the south of Calgary, reports of break and enter and theft of motor vehicles has seen a sharp incline over the last few years with 2017 numbers basically double the 2014 reports. The MD says they are looking at upping the number of RCMP officers in the area with at least one task specifically to rural property crime prevention. The RCMP meanwhile urging people not to take the loin into their own hands - Edward Maurice, the rural Okotoks homeowner faces 3 charges of aggravated assault, pointing a firearm and careless use of a firearm. The alleged trespasser meanwhile faces charges of mischief and theft under $5000. Sarah Offin, Global News.

Rob: So, it’s pretty clear to see who is facing the more serious penalties here - and it’s the homeowner who was being victimized. Police say that there were two people on his property, they were rummaging through his vehicle, the homeowner confronted them, and according to the police, fired shots at them, hence the aggravated assault charges. Now, it’s not clear whether the individual even phoned police to begin with, but that’s part of the concern, I mean, had he, the thieves probably would’ve been long gone before the cops got there. And maybe the likelihood of finding them after the fact was low. But police say what he did here was excessive. So even though they recommend not dealing with a situation on your own, there are probably steps you can take that would be lawful. Then again it’s hard to know where those lines are. Ed Burlow is a defence attorney that specializes in firearms law, represented Ian Thompson in a high profile case in Ontario where that homeowner was acquitted after he was facing some charges. He confronted some people who were firebombing his home. A pretty dangerous situation in that instance. Thanks for joining us here today. Welcome to the program.

Ed: Thank you for calling

Rob: I mean how common is it that we see in this country where individuals who are defending themselves, defending their property, end up facing charges themselves?

Ed: Well, it’s becoming more prevalent because people are resorting to the use of force to defend themselves and defend their property because of the slow police response times, especially in the rural areas. Even in southwestern Ontario, we are having police response times as long as 45 minutes.

Rob: Yeah, I mean it’s a real problem and it’s clearly a contributing factor in many of these cases. Now, I think what we can take from the Ian Thompson case and the Gerald Stanley case recently where he fired warning shots - the judge said that was legitimate, even going to get his gun in the first place was legitimate and he was facing a situation dealing with thieves, so - What’s the advice you have for homeowners?

Ed: Well, it’s difficult advice because when you are defending your property, the criminal code was changed by the Harper government, who specifically recognized that you can actually use reasonable force to maintain your property from being stole from people and to keep people off of your land, out of your house, out of your apartment. The question becomes: What’s reasonable in the situation?

Part of the issues becomes that, once you apply some force, how does the intruder or attempted thief, respond? And at the point it can escalate into protection of your own life. It goes well beyond protection of property and that happens in an instant.

Rob: You know, I mean obviously there are a lot of people who live in rural areas who have a firearm and it has some functional purpose. What part of it is self-defence because they are worried about these situations where they are on their own, they are dealing with a potentially dangerous situation, it’s there for protection. As we saw in the Ian Thompson case - initially he was charged with unsafe storage of a firearm. The mere fact that he got his firearm to defend himself got him in trouble even though he was ultimately acquitted. It seems contradictory - they say you can have a weapon for self-defence but you basically can’t access it.

Ed: Well, it seems that way. Each case seems to be different. I’ve had many cases even in the city of Toronto area, in fact in the city, where a homeowner has taken their handgun out and brandished it to keep an intruder at bay until the police came and not been charged with anything. That’s because the gun wasn’t shot off, there were no shots fired. It’s really so hard to say because likewise there was a gentleman, I didn’t defend him, down central Ontario who shot his shot gun at a couple of teenagers, at least in their late teens, who were stealing his fish out of his fish pond, and this had been persistent and he popped off a couple rounds with a 20 gauge over their heads - he got a year in prison.

Rob: Oh, is that right.

Ed: Yeah, so what happens is, depends on the circumstances, how it’s handled. Honestly, I don’t think he should have gotten a year in prison because he deliberately did not shoot at them, he did this to scare them away; they also had knives on them - there are a lot of things that come into play in the individual circumstances.

The problem becomes one of degree and that becomes the issue. Certainly, if you hit someone and wound them, the police are going to lay a charge - unless of course that person is close to you and has attacked you with a weapon and sometimes they will lay both charges, you and the perp, and they’ll let the judge sort it out.

Rob: Do you think the changes to criminal codes have made it easier for homeowners, those who are protecting their property, to make that argument? That they were doing what they needed to do to protect their property and it was reasonable under the circumstances?

Ed: The criminal code has made that easier. Definitely. However, it’s the interpretations of your actions by the police that become problematic. You see sometimes the police will say that when you use your firearm against somebody that is vengeance. Well it’s not, it’s self protection. If it’s there in the instant, you are your own first responder. You are your own first responder. If someone steals something from you and then you go and hunt them down you know a week later, that’s vengeance - that’s totally different. I get this confusion from the police and crown attorney where they don’t recognize the difference between self-protection in the instance where you are your own first responder and vengeance. They mix that up, they want to call it vengeance and it's not - you are trying to stay alive and that’s a primal right that everyone has.

Rob: Yah. Now I mean it seems like this case near Okotoks, the police are alleging anyway, that the homeowner went outside, saw the guys rummaging through his car and went outside and started shooting. If that’s the case, it might seem excessive. There is a big difference between coming out guns blazing and making it known that look, you need to get off my property. I have a firearm, you are being warned, you need to leave now.

Ed: Well yes, those two descriptions are quite different. I go so far as to say that if you can out and said I have a firearm and shot it in a way that was definitely not at the person - you know, 90 degrees to them, put a shot in the ground over to your side, not at them - I don’t think you are going to get charged because there is no danger in that - and you are communicating that you are serious because words are cheap. You’ve got to realize another thing, a lot of these thieves - they are drunk, they are high, they are desperate - they have no other alternative on how to make money and because of that, that makes them very dangerous.

Rob: Right. So in a situation where look, if someone is rummaging through my car they don’t necessarily represent a threat to me, but I'm entitled to go confront them. I'm entitled to go up and say look, that’s my vehicle, you need to step away, you need to leave. Now at that point maybe they get riled up, maybe they want to attack me. Even though I came out and initiated the conversation - I would still be acting in self defence then, wouldn’t I?

Ed: Oh yes, let’s say he came out and you had your phone on and you recorded what they do. You are taking a picture, you are taking a video and now all of a sudden they become very confrontational and you are telling them to ‘get out of here’ and now they are very confrontational because now you’ve identified them and now you’ll be able to give that to the police. Now, many of them then will want to attack you to get that evidence and destroy it, or to put you out of commission and suddenly that becomes a matter of self-defence and things escalate quickly.

Rob: When police tell property owners - don’t confront thieves, don’t take matters into your own hands, document it if you can but phone the police, are they doing so because they don’t want homeowners to get hurt? What’s the rationale behind it? Is it well intended advice or does it have interior motives?

Ed: No, it’s well intended advice because very very people, a small minority of Canadians are actually trained in the use of force. If you look at many of the videos, let’s say just cruise the internet, and you look at some of the videos we are buying in America . Some store clerk has confronted a robber with a gun that the store clerk has and the robber jumps them and tries to take the gun away. That’s very real. That can happen. Because the first thing a police officer is trained in use of force is how to retain your firearm, how to retain your weapon, that’s number one. I think that the problem becomes this, we need, as a society, to allow our people, our citizens, to have less than lethal ways of dealing with personal safety confrontations. We need to be able to use pepper spray, we need to be able to use caesium spray, you know such as maze. Certainly, that would go a long way to people not wanting to drag out a gun in the first place because then you get into much more violent situations. The same thing with a Police officer. They have other, non-lethal self-protection weapons, and quite frankly, if they can have them, how come citizens can’t have them? Our rights are just as big as the cop - and also, the off duty cop, he can’t have them, she can’t have them. It doesn’t make sense.

Rob: Someone brought up yesterday in this conversation, the issue of guard dogs. I mean, I don’t know, can you speak to how the law addresses that? If I have dogs and someone breaks onto my property, then the dogs take exception to that, you know they react like angry dogs, am I legitimate, or am I potentially liable for that?

Ed: Oh, you’ll be liable if your dog bites somebody - there are no two ways about that.

Rob: Yah, even if it’s a thief?

Ed: Well, yeah. You know, you’ve got to look at what warning signs and you have to do that ‘how big was the fence that they had to jump over or break into?’ There also comes a different situation too, whereby let’s say, you release the dogs on somebody - well that’s an intent to hurt, when you know your dogs will do that. But generally yes, we are liable for what our dog does. If you’ve got a dog on the leash and they suddenly turn and bite somebody, yeah, you are going to have to pay for that injury.

Rob: Right. Well so as you’ve said - improve the criminal code or perhaps provide more clarity, more leeway to homeowners but there is still a line and there is still what police are going to view as excessive and there is probably - I mean, there is no way around that.

Ed: Well that’s direct and it’s sometimes a matter of degree. You know, even when you have a situation, and I’ll go back to the United States where you have a castle doctrine. Let’s say somebody comes across your threshold and you're in Texas, you can shoot them, because that is the castle doctrine. But after you shoot them and they go down, you are supposed to call an ambulance. If you then walk forward and shoot them until they are dead, that’s murder, and that’s been found in the Texas courts. So once again, it’s a matter of degree. The question here in Canada is not whether or not we shoot at them but how we use the gun. Do we brandish it? Do we tell them that it’s loaded? Do we show them that it’s loaded? And then when does that affect the person who is there? Some people if they are on drugs, they will view it as a threat, they won’t understand it and then they will attack you. Others, if they are sane, will run away

Rob: Right.

Ed: You don’t know because you are dealing with an unknown and the police are being serious when they say that you are exposing yourself to harm. By going down and confronting someone because you don’t know who you are dealing with - you don’t know if they have a pistol in their pocket and pull it out on you. And you don’t know how high or drugged up they are.

Rob: Yeah, no kidding. Well some great points here, Ed. I appreciate the insight. Thanks for making some time for us.

Ed: Anytime.

Rob: Take care. Uh, Edward Berlow is a criminal defence attorney, based in Ontario, focuses, specializes in gun law, and I think there are only a handful of attorneys in the country who do. I mean hopefully you never need somebody like that. Anyway, now you know.