Citizens do not have a duty to retreat when being victimized by property crime or violence, but they should avoid the confrontation if they can, according to defence lawyer Don Smith.
“You are not going to be dealing with the best and the brightest of people,” Smith said during a presentation at Agri-Visions in Lloydminster.
“Quite often you’re not going to be dealing with people who are sober, and you’re not dealing with people who are making the right decisions.”
Smith discussed relevant aspects of Sections 34 through 37 of the Criminal Code of Canada on the rights people have to protect themselves and their property.
He said self-defence or the defence of property is not a right in the same way that many of us think.
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“What it is in law is a justification for a person who has committed a criminal act, as in you’ve committed an offence, but it’s justifiable in the circumstances that you found yourself in,” Smith said.
The offences that normally come into play when the self-defence justification is used are assault or uttering threats.
An assault is an intentional application of force to a person without consent and it can either be actual force or it can be apprehended force.
For instance, if someone cocks their fist during a heated argument, the cocking of the fist is considered to be an assault. If someone is injured, the charge of assault causing bodily harm can be laid, and there are also offences for assault with a weapon.
“An example of that would be somebody standing on their porch with a firearm saying you better get off my property now. That could be considered assault with a weapon,” Smith said.
Section 34 of the Criminal Code deals with the defence of a person and it doesn’t have to be yourself, it can be in defence of somebody else.
Smith said two concepts are important to understand about the self-defence justification. One is that it must be reasonable and second is that any source of force used has to be proportional to the risk that you’re facing.
“The person who is using self-defence has to believe reasonably that some sort of force is being used against them or there is an imminent threat of force. In other words, we can’t use self-defence as sort of a pre-emptive strike unless there’s some very specific circumstances,” Smith said.
An example, he said, is a person who is known to be violent and is angry at you for something, and you see them coming onto your property. At that point maybe you have grounds to do something pre-emptively, but generally self-defence is considered when someone is reacting to being assaulted.
Judges normally consider several factors when a self-defence justification is used.
The first part is called the subjective element: Why did you feel threatened? What was the perception of the threat or force that was being used against you?
The other part of the test is whether your actions were reasonable when dealing with that threat or the use of force against you.
Whether a weapon was involved will be considered, as will the size and age of the person one is defending themselves against.
“The main thing is, if you’re using force against somebody it can’t be excessive, it has to be proportionate to the threat you are perceiving,” said Smith.
“A lot of what you consider to be reasonable is going to depend on the circumstances. One of the real difficulties with this lies, any time you’re talking about whether somebody acted reasonably, reasonable people can disagree about what is reasonable,” Smith said.
Smith said when it comes to the defence of property, Sections 34 and 35 of the Criminal Code were enacted in 2012 and there hasn’t been a huge amount of court cases considering the defence of property at this point — it usually gets blurred into whether there is an appropriate self-defence of the person that’s occurred.
He said as a general rule, what is seen as a reasonable use of force for the defence of property is going to be less than what is reasonable for the defence of a person.
“Obviously the person’s health or life is worth a lot more than a quad or a truck or anything else. I can certainly say the use of lethal force, or force that is going to inflict injury on a person, generally is not going to be seen as reasonable,” Smith said.
He said an issue with this section in the Criminal Code is where it says a person is not guilty of an offence if “they believe on reasonable grounds that another person (1) is about to enter, is entering or has entered the property without being entitled by law to do so, (2) is about to take the property, is doing so or has just done so,” according to Section 35 of the Criminal Code.
The amount and type of force that is used has to be proportional to the event, but it is difficult to know an intruder’s intentions.
If a person drives onto your property it’s risky to go “beyond saying something like, ‘stop, don’t go any further or I’m going to call the police, give me an explanation to why you’re here’. But to come out, for example, and stand on your porch with a gun, that can be very problematic in terms of the type of offences you can be charged with if you’re wrong.”
If a property owner conveys a threatening attitude to somebody, this person may turn around and complain to the police.
Smith said another legal concern property owners should keep in mind concerns the use of a firearm in the commission of an offence.
“If it has been found that you haven’t acted in self-defence, or that the force that you used is excessive and a firearm has been involved with that, there is minimum punishment in the Criminal Code for that offence. It’s a one-year minimum jail term sentence,” Smith said.
Another area of concern that comes up is when a property owner attempts to chase suspected thieves.
“At the point someone is fleeing from your property, no matter what you do you are no longer acting in self-defence,” Smith said.
Property owners could still be acting in defence of their property if somebody has loaded their property in their vehicle and are driving away. The property owner may be justified if they follow the alleged thieves, or attempt a citizen’s arrest.
However, this can expose property owners to charges if anything goes wrong during the pursuit.
Smith said if a motor vehicle accidents happens during a chase and if somebody is injured, “you are probably going to be charged with dangerous driving causing bodily harm. If somebody dies, you’re going to be charged with dangerous driving causing death,” Smith said.
The RCMP call off their pursuits when they become dangerous.
Smith also suggested property owners always call the police first before taking any action.
“The first question someone is going to ask you if there is an incident that you’ve had with somebody or they’ve done something to your property is, did you call the police, or why didn’t you call the police?”