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.”
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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.
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“Defence lawyers are a bit rocked on our heels in terms of advising on these types of things because there hasn’t been a lot of judicial consideration of these sections,” he said.
Lawyer Edward Burlew, who specializes in Canadian gun laws, told Global News that both police and the Canadian courts are concerned with “reasonable use of force.”
In other words, was the homeowner’s response proportionate to the threat to their property or person?
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“Certainly, if you hit somebody and wound them the police are going to lay a charge,” Burlew said. “Unless of course, that person’s close to you or has attacked you with a weapon.”
But Burlew said it’s not always easy to determine what the courts will consider a reasonable use of force.
Burlew pointed to a case in Simcoe County as an example where he told Global News he disagreed with the court’s decision as to what could be construed as reasonable force.
He said a man who caught teenagers stealing fish out of his pond had fired a couple rounds of a 20-gauge shotgun over their heads and was sentenced to a year in prison, despite the fact that no one was injured.
Dunn said the courts may also adjudicate differently depending on where you live.
“Some courts, especially out west, are much more lenient with homeowners using firearms,” Dunn said.
Burlew said there are important reasons why police discourage homeowners from using force to protect themselves and their property from intruders.
“Very few people – a very small minority of Canadians – are actually trained in the use of force,” Burlew said, suggesting that an intruder or trespasser could attempt to overpower and wrestle a firearm away from the homeowner.
“You don’t know who you’re dealing with,” he said. “You don’t know if they’ve got a pistol in their pocket and going to pull it out on you.”
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