- D. Fulford (law student)
Gerald Stanley never claimed defence of property, so why do we keep talking about it?
Since the delivery of a non-guilty verdict for Gerald Stanley there has been ample discussion across various media forums about whether ‘justice’ was delivered in this case. By now most will have heard time and again about the trial of Gerald Stanley and the subsequent verdict delivered of not guilty on the sole charge. To reiterate briefly, Gerald Stanley was charged with second degree murder in the shooting death of 22-year-old Cree man Colten Boushie. Following a two-week trial conducted in North Battleford, Saskatchewan, Stanley was acquitted by a jury on all charges.1
Referring to the ever-present media coverage of this story, there exist many attitudes on the issues that this case brings to light. When looking to social media especially, people have expressed diametrically opposing opinions and rationale for the events that took place. Throughout my own Facebook newsfeed, I see attitudes ranging from varying degrees of support for Stanley to utter disgust at the acquittal which was delivered. The most controversial discussion presents in statuses and comments which focus on the defence of property, or self-defence claims, as supposedly justifying the actions taken by Stanley.
In reality, the defence that Stanley had presented before the court was that the shooting was the result of an accidental discharge of his gun, described as hang fire. Regardless of this it still remains that much of the dialogue surrounding the case from the perspective of Stanley supporters centers on a notion of a right to defend one’s property or one’s self and family. This is expressed in the presence of commentary somewhat to the effect of “if there was a bunch of drunks on my land trying to steal things…” or claims that “he was protecting himself and his family”.
Problems associated with these contentions are illustrated and considered in the podcast, Canadaland, wherein the discussion is focused on the fundamental disagreement evidently present between Stanley supporters and Stanley himself.2
By Stanley supporters purporting a belief in a right to protect property, rising to the level of using deadly force, they are in effect ignoring the defence deliberated by the jury in the case. They are also essentially ignoring the scope of the law in regard to a right of defence of property. Presumably, there is reason behind Stanley not presenting this defence before the court in his case: it simply would not have stood.3 Protection of property extending to the level of using deadly force in the context of this case simply has no conceivable legal basis. The law of defence of property is governed by section 35 of the Criminal Code of Canada, with the relevant sections outlined as follows:4
The issue in the case of Gerald Stanley arises under sub-section d) of the Criminal Code section 35. Presumably, no court would find legal basis in the assessment of the act in this case, that being murder, possibly being excused under a section 35 analysis as from a legal perspective it is simply not reasonable in the circumstances. If this defence had been raised under this section the court would be required to analyze whether the action was proportionate to circumstance, and the result would seemingly be a resounding no.
While Stanley supporters may feel emboldened by either the option of anonymity on social media platforms or a fundamental lack of, or misinterpretation of, the current state of the law, these ignorant remarks are entirely disconnected from the actual defence put forth of accidental misfire. The shift in dialogue to a discussion of property rights, and defence thereof, is illustrative of a segment of the public’s willingness to find for Stanley regardless of the lack of legal ground in the defence they rest belief. This presents a dangerous instance of an unjustified interpretation of legal principles that ultimately raises concerns about the racialized undertones of the debate. If individuals find themselves having no ethical qualms with the murder of someone trespassing on one’s property, or justifying another person’s actions of reacting in such a way, then we as a society should look again at not only the legal issues but the systemic, ethical and social concerns that this presents.
Endnotes
1 http://www.macleans.ca/news/canada/alberta-farm-shooting-is-a-new-touchstone-for-rural-gun-owners/.
2 Brown, Jesse. ‘SHORT CUTS #154 – Patrick Brown vs His Reputation’, (February 14, 2018), online: Canadaland < http://www.canadalandshow.com/podcast/patrick-brown-vs-reputation/>.
4 Criminal Code, RSC 1985, C-46, s 35(1).
