Criminal Law

Decisions provide guidance on use of reasonable force

By AdvocateDaily.com Staff

Recent jury decisions have given homeowners increased clarity over when and how much force they can use when faced with an intruder in a threatening situation, Calgary criminal lawyer Greg Dunn tells AdvocateDaily.com.

Dunn, principal of Dunn & Associates Criminal Defence Lawyers, says the judgments also highlight the immense gap around attitudes to firearms and protection of persons and property between rural and urban Canadians.

“There’s a big divide between those groups,” he says citing the acquittal of a man who allegedly shot and killed an intruder breaking into his truck at night as a case affirming that homeowners have the right to protect themselves.

Taken with the Saskatchewan case involving the jury acquittal of a farmer who accidentally shot and killed one of several people who had driven recklessly onto his property, he says the law is becoming somewhat clearer in its application and context, especially in rural Canada.

“Historically defending against these kinds of charges was much more convoluted, but self-defence legislation was cleaned up a few years ago and today it’s less complex and more flexible,” he says. “However, there are still some myths that persist — one being that you can’t use a gun to protect your property. There’s no law that says that, but there’s no law that says you can either.”

In terms of protecting yourself or other people, the law requires an "air of reality" with self defence," Dunn says. “You must believe that force is being used against you, your application of force must be in the context of protecting yourself, and the force you use must be reasonable,” he says.

When it comes to safeguarding property it’s very much the same, Dunn says.

“You must be in what’s called ‘peaceable possession’ of that property, meaning you didn’t appropriate it and refuse to give it back. And you have to be able to prove that the person you are confronting entered your property without entitlement or is about to take your property or otherwise damage it. Again, the force used must be reasonable in the circumstances,” he says.

In the Hamilton-area case, Dunn, who was not involved and comments generally, says the accused testified he thought he saw a weapon and reacted.

“It’s not whether there was in actuality a weapon because there wasn’t. What was important was that he reasonably and subjectively feared there was a weapon and acted,” he says. “In that case the jury properly, in my view, acquitted him.”

In the Saskatchewan case, the defence argued that the gun misfired because the ammunition was old and the jury agreed, Dunn says.

“In both cases some people, including members of the media, tried to make it about race, but it clearly wasn’t,” he says. “This is the strength of the jury system. You are judged by your peers — ordinary people. They put themselves in those situations. They live in those rural areas where they know it can be an hour or more before police can arrive and so you are faced with a split-second decision.”

Other recent cases, however, show there are still questions as to how urban police and courts treat these cases, Dunn says. In another Hamilton case, a man pleaded guilty to firearms charges after shooting a man he thought was breaking into his home.

“The homeowner was not the licensed owner of the gun,” he says. “A deal was cut to drop the attempted murder charges in exchange for a plea, which resulted in time served in pre-trial custody.”

In a 2017 case, a Halifax man was charged with attempted murder and a slew of firearms offences after he allegedly wrestled a gun away and shot one of a pair of armed invaders who broke into his home.

Despite the fact police and prosecutors continue to charge homeowners, Dunn says the trend is clear.

“I’m buoyed by these decisions. Juries are sending a message that they are not going to convict otherwise law-abiding citizens using lethal force, if necessary, in defending life and property.”

As a result, he says, the law is shifting to support those standing their ground to defend themselves and their property, especially in rural Canada, where firearms are part of life and kept around to deal with bears and wolves.

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