Is it Legal to Shoot an Intruder in Canada?

February 6, 2018

The Law When it Comes to Defending Your Property

written by Boris Bytensky

“Get off my property or I’ll shoot” is a phrase one might hear in a Spaghetti Western.

It’s a phrase that one may well be permitted to utter in real life if a trespasser is on your property trying to steal your car. However, following through on that threat and killing the trespasser is likely to land you in police custody, facing a charge of murder.

The recent Hamilton shooting of a suspected truck thief, allegedly by the owner of the truck (which was parked in the owner’s driveway at the time), brings into focus the Criminal Code provisions dealing with self defence and defence of property. There is no doubt that the criminal law allows us to use some force to protect our property. The question is “how much?”

Not surprisingly, the law does not provide a bright line answer to this question. Rather, the force used has to be “reasonable in the circumstances”. What is or isn’t “reasonable” depends both on who is asked to judge, and on what the “circumstances” are. For that reason, shooting a child in the back as he is running off with a toy taken from the front lawn is clearly different than wielding a baseball bat to scare off a group of adult thugs who are in the process of stealing a brand new convertible. In some cases, brandishing (but not using) a firearm may well be “reasonable.”

But what if shots are actually fired? Historically, courts in Canada — unlike their counterparts south of the border — have not extended defence of property principles to excuse shooting a thief, whether or not death ensues. In order to justify that type of excessive response, there must be more than just the threat of a loss of property involved. Did the thief, when first confronted, aggressively attempt to attack the homeowner? Did the thief himself reach for or display a weapon? Did the homeowner, in addition to the possible loss of property, honestly believe he or she was also in grave danger? Every case is obviously different, but these are the types of factors that might justify the homeowner’s use of deadly force.

Many Canadians will likely feel a great deal of sympathy for Peter Khill, the man charged with murder for allegedly shooting that suspected car thief. Some may say they would have done exactly the same thing. Undoubtedly, some will say the thief deserved it. However, for Mr. Khill’s sake, I hope the evidence demonstrates that something other than the mere theft of the truck was occurring. Perhaps, Mr. Khill had a basis to fear for his own safety, leading to his alleged use of deadly force.

Otherwise, regardless of our sympathy, Mr. Khill faces a life sentence, the automatic penalty for second degree murder (he would be eligible for parole after 10 years). While this may seem harsh to some, it’s worth remembering a lesson from another Hamilton area case — the death of Tim Bosma — that no life is worth “a stupid truck”.

– Boris Bytensky is a criminal lawyer and Adjunct Professor at Osgoode Hall Law School

http://www.crimlawcanada.com

@BBytensky

 

from the Toronto Sun website: http://torontosun.com/2016/02/05/the-law-when-it-comes-to-defending-your-property/wcm/08ba73e9-4551-4725-b51f-0f063a02c5a5