Law professor clarifies manslaughter and reasonable protection of property

By Greg Higgins
February 9, 2018 - 12:30pm

The Gerald Stanley trial has unearthed some confusion from the public as to what extent property owners can go to protect their property, or what consitutes manslaughter. According to one law professor, it can vary greatly on the circumstance.

While the Stanley defence team has never taken the position that Gerald was protecting his property, the case has still raised the question for many law experts and many in the general public.

According to Glen Luther, Professor of Law at the University of Saskatchewan, section 35 of the Criminal Code of Canada states someone protecting their property can only react “reasonable in the circumstance.”

“Those last words lack clarity. The judge or jury would have to decide if the reaction by the person who was protecting their property was acting reasonably. There isn’t a lot of other guidance in the criminal code as to what that means. Clearly it’s not simply that someone feels they have to shoot someone to protect their property. I would suspect all judges would hold that to be an unreasonable reaction.”

Luther added the person is protecting property and not life. He said what would be considered reasonable to protect property, would be lesser than to protect a person.

Luther said the section of the criminal code clearly states that one cannot just shoot someone who enters their property and tries to steal something. That reaction would never be acceptable if someone steals golf clubs from a car, however it could be considered reasonable during a home invasion.

Another charge Luther provided clarity for was manslaughter.

“It is an offense that has created all kinds of problems in Canadian law,” Luther said. “We often see the parking lot fight situation. The one punch and person falls down and hits their head on a parking block and died. People have been convicted in those cases. It isn’t an offense that requires a high degree of mens rea or guilty mind.”

Luther added there has been recent case law in the Supreme Court which has clarified that in order to be guilty of manslaughter, one has to show a want or disregard for safety of other persons, or have acted in a marked departure of the standard of a reasonable person.

“Even in the Boushie case, if Mr. Stanley acted careless with that gun, he should only be guilty of that offense. If he shows a mark departure from the standard of the reasonable person, in other words you might think of it as gross carelessness on his part; if he acts in gross carelessness and that causes death then he is guilty of manslaughter.” 

The jury is still deliberating in the case of Stanley. Judge Martel Popescul has told the jury they can choose one of three verdicts in the case: guilty of second degree murder, gulity of manslaughter, or not guilty.

 

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