ILLUSTRATION BY Dave Elston
In all the years I’ve been living out West, I’ve never encountered or heard about property theft as much as in recent times. More than several of my country neighbours have experienced thefts of varying degrees – from fuel to equipment, some have even lost their prized horses. Audacious thieves are committing their crimes in the middle of the night, while country-folk sleep soundly in their beds, and not much seems to get done about it. Maybe there’s something to be said about the Old West and it’s way of dealing with thievery. Are our current property theft laws substandard? What’s a rural property owner to do?
The Old West had its own unique brand of justice cooked up just right for the frontier. Back in those days the law didn’t require a cowpoke riding solo on the high plains to holler for help before drawing down with his Colt on midnight rustlers fixing for his best horse. The lonely pioneer widow could still swing a double-barrel Coach gun from the veranda with authority on a peeping scoundrel and wouldn’t be charged with careless use of a firearm. However, those days are long gone and today we live in a more civilized and gentile age where it seems you must treat robbers, murderers, bandits, and thieves with courtesy and serve them tea as they load up your wares and ride off into the sunset. So what can you do and what can’t you do? As a starting point, know that legalese is not ole’ Doc’s forte – so don’t go quoting me to the judge if you accidentally get a bit twitchy and start blasting away at some wayward visitors.
First off, Doc is a firm believer in the old adage that an ounce of prevention is worth a pound of cure. Thieves always look for the easiest target, and will often “case” properties for a good haul and a quick easy getaway. You don’t need rows of razor wire or a moat to make your property an uninviting target, but there are preventative measures you can take. Thieves don’t want to be seen, they work most comfortably under the cover of darkness and anonymity. A bright, well-lit farmyard or acreage might just be the only thing he needs to see to move on to another target. Security cameras and alarms also enhance the deterrence effect – so long as the culprit knows that they are there – so if you have them, make sure they are visible and the intruder is alerted as to their existence. Gates are a terrific source of deterrence, crime statistics will attest that gated residences have significantly lower incidents of break-ins than ungated properties. A grumbly old yard hound will make a racket and if he’s mean enough might take a chunk or two out of a bandit’s backside. Remember that your acreage doesn’t have to be Fort Knox, it just needs to appear to be more impenetrable than your neighbours’.
However, I know as a wannabe John Wayne you’re really not interested in all the panzy stuff that the police tell you to do, and hell, you’ve not moved way out to scenic acres just to hide in your closet and dial 911. You want to know (not withstanding all reasonable precautions of course), if a determined rustler breaches the sanctity of your property and is in the process of loading up your best roping horse, can you draw down? Well, the answer is, it depends.
In 2012, the Conservative government passed Bill c-26 (also known as the Lucky Moose Bill after Chinatown store owner David Chen – who was charged with assault after he chased down, tied up and detained a shoplifter at the Lucky Moose Food Mart), which streamlined Canada’s antiquated and convoluted “defence of property” provisions. Overall, a successful claim of defence of property in the law requires three things:
- A reasonable perception of a specified type of threat to property in one’s “peaceable possession”;
- A defensive purpose associated with the accused’s actions; and,
- The accused’s actions must be reasonable in the circumstances.
In acreage cowpuncher terms, that translates to:
- That ropin’ horse you believe is belongn’ to you needs to be legally belongn’ to you;
- What you do must be for the purpose of saving your roping horse from theft; and,
- The force you use to save your roping horse from theft must be reasonable in the circumstances.
Each case will turn on its individual facts. For example, farmer Brian Knight of Lacombe, pleaded guilty to criminal negligence causing bodily harm after giving chase to, running down and shooting ATV thief Harold Groening in the hiney with a shotgun. Whereas Saskatoonian Hugh Lindholm was never charged at all for firing two warning shots with his hunting rifle at a stranger who had hurled a brick through his front window, and was standing on his deck demanding his car keys.
The rule of thumb is there is no rule of thumb. Each situation is different and so is each prosecutor and each judge. There are no hard and fast rules, but a good dose of common sense will tell you what force is reasonable and legal, and what force is going to land you a free stay at the crowbar hotel.
Doc West is grateful for the consultation provided by Dunn and Associates for the legal clarification offered in this article.