Criminal Law

Situation dictates reasonable force in defending property

By Jennifer Brown, AdvocateDaily.com Senior Editor

When determining what kind of force can be used to defend your property, the circumstances dictate what is considered appropriate, says Calgary criminal lawyer Greg Dunn.

“In 2013, the Conservative federal government passed a law that, from my perspective, cleaned up the self-defence provisions and the defence of property provisions,” says Dunn, principal of Dunn & Associates Criminal Defence Lawyers.

“Before that, the self-defence provisions were criticized for being really complex and difficult to apply, and they were getting too many inconsistent results with similar facts depending on how judges would analyze it,” Dunn tells AdvocateDaily.com.

The federal Citizen’s Arrest and Self Defence Act came into force in March 2013. It condensed everything in self-defence down to the question of what is reasonable in the circumstances, says Dunn.

“It's the same test for self-defence personally, and defence of property, you can use force that is reasonable in the circumstances.”

Prior to 2013, the test under defence of property was “no more force than necessary.”

“With the changes under the new legislation, the big question became, how would the test change for the defence of property and the amount of force people could use to defend it? Would it loosen things up for people to be able to defend themselves with firearms, with an axe, or knife?”

But since the Act was introduced, Dunn says not much has changed in terms of how case law has evolved.

“Quite honestly, in the last six years there haven't been many developments, and the case law that has come out has been fairly consistent in result in what we saw under the old legislation,” he says.

That means much of the previous common law principles used to determine proportionality or reasonableness — “the no-more-force-than-necessary test” under the old law — have been applied under defence of property under the new law.

Dunn says judges are making a call based on the facts of each case and their personal view of what defence of property means.

“What judges are asking themselves is what is it you’re defending? What are the circumstances? And how much force has been used?”

While the law has simplified the application, it didn’t give citizens any further clarity as to how much force is too much. For example, in the August 2016 fatal shooting of a perpetrator by a Saskatchewan farmer, the judge said the farmer was lawfully entitled to use his firearm to scare away the man and the others who appeared on his farm that day and were attempting to steal his truck.

“If someone is stealing my car, for example, as in the Saskatchewan case, can I use a firearm? The judge in the jury charge indicated that the farmer was lawfully entitled to use the firearm to scare them away and that the shots in the air were reasonable in the circumstances,” Dunn says.

A Saskatchewan jury found the farmer not guilty of second-degree murder in the shooting.

Dunn says Chief Justice Martel Popescul looked at the circumstances of that charge, the fact that the accused was a farmer and that more than one person was on his property. Popescul told jurors that the farmer was acting lawfully when he grabbed his pistol and fired two warning shots in the air.

“The chief judge of Saskatchewan felt it was reasonable under the circumstances,” Dunn says.

However, Dunn says it’s never going to be viewed as reasonable to kill someone over the defence of property in Canada.

“We don’t have the American version of the Castle Doctrine, which says your home is your castle, so you’re entitled to defend your home and your property with lethal force and have no duty to retreat,” he says.

However, the advantage of such legislation is that there is clarity on the law.

“It may be harsh, but it offers definitive clarity of the legal rights of citizens to defend their property and also for people who would be thieves or seek to enter someone’s property at night,” he says.

Dunn says there is hope among self-defence proponents that citizens will have a broader right to defend themselves and their property including with firearms, while creating greater angst with social constructionists, who believe it will lead to a more lawless society and vigilante justice. That is what may also be fueling a desire to push for a ban on handguns.

“Toronto mayor John Tory is proposing a nationwide ban on handguns based upon the experience of downtown Toronto. People in rural areas of the country find that to be a very tangible exhibition of centrist Canadian elitist policy: ‘We have a gun control problem in Toronto, so we’re going to ban guns everywhere.’ The facts are that that degree of gun violence doesn’t exist in every major Canadian city,” he says.

Dunn says simply banning handguns is not going to prevent hardened criminals from shooting each other.

“Most guns that are used in these crimes are illegally obtained anyway, and we already have strict restrictions on their use. Gangbangers are not going to follow additional handgun rules, they’re just not,” he says.

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