In the past month, Canadian law has twice failed to achieve justice in cases where young Indigenous people have died at the hands of others. In the span of a week, Tina Fontaine and Colten Boushie forced Canadians to face the deep injustices Indigenous peoples have been pointing out for generations.

In addition to crucial questions concerning the fairness of the criminal justice system, the death of Boushie has also raised questions about private property rights as a justification or explanation for the use of lethal force in Canadian law.

The wrongful nature of trespass, and the right to protect private property, has been raised as a moral, if not legal, defence, following the controversial exoneration of Gerald Stanley, the Saskatchewan farmer who killed Colten Boushie, a young man from the nearby Red Pheasant First Nation.

Stanley told the court he was scared when a group of drunk Indigenous youth trespassed onto his land. Stanley did not call for help. Instead, he used a gun to scare away Boushie and his friends. After two warning shots, a bullet ended up in the back of Boushie’s head and the young man was killed. As regretful as some may be for this tragedy, some believe Boushie got what he deserved.

Canada has laws that forbid trespassing. Saskatchewan’s Trespass to Property Act makes it an offence to enter someone’s private property. The owner may call the police and have a trespasser removed with a fine or can sue them for damages. But groups such as “Farmers with Firearms” argue that these laws don’t actually protect, and that law enforcement is slow to respond and encourages farmers instead to arm themselves.

While this may align with that familiar storyline, one with clear heroes and villains, there are grave consequences to the argument that firearms can resolve property disputes. In the heat of the moment, people cannot be trusted to defend themselves with guns. Even Stanley’s supporters acknowledge that pistols cause unintended injury and death.

Boushie’s death, and the recent not-guilty verdict, also point to the danger of importing simplistic stories about right and wrong into law. In 2012, the federal government changed the Canadian Criminal Code to allow greater room for the use of force against trespassers. Now, force only has to be “reasonable in the circumstances,” not “proportionate” and “necessary.”

Before these changes were made, the Supreme Court of Canada said in R v. Gee, “it cannot be reasonable to kill another merely to prevent a crime which is directed only against property.” When the law was changed, University of Toronto Law Professor Kent Roach predicted the “disturbing possibility” that killing in defence of property could result in a defendant going free in 2012.

In Stanley’s case, his lawyer told the jury that rural landowners feel the need to defend their property against intruders, which explains the response of the accused.

Saskatchewan’s Chief Justice Martel Popescul told the jury the Crown must establish that Stanley’s use of the firearm was different from what a “reasonably prudent person” would do in similar circumstances. Popescul did not address how racism could influence their view about how a “reasonably prudent person” may react to Indigenous strangers entering a yard uninvited. This omission is significant. Discriminatory beliefs can affect what a jury thinks.

As others have so poignantly argued, the verdict requires us to take a hard look at ourselves as a society. We urge all Canadians to consider the troubling relationship between trespass narratives, the protection of property, and the foundational role of colonization and racism in shaping our relationships to land.

As Métis scholar Chelsea Vowles argues, rural places could be a site of “the most transformative relationships in this country” if alliances between Indigenous and non-Indigenous people could be strengthened. The Stanley verdict reflects the deep divide in our society that makes these alliances so hard to build.

Loading... Loading... Loading... Loading... Loading... Loading...

Do we really want to be a country that gives neighbours the right to kill someone in the name of protecting their property? We urge jurists to directly confront the danger of sanctioning violence in the defence of private property. In a country at the very early stages of reconciling its colonial past, including the fairness of the justice system in relation to Indigenous youth, our laws must value people over property.

Alexandra Flynn is an assistant professor in Human Geography at the University of Toronto Scarborough. Estair Van Wagner is an assistant professor at Osgoode Hall Law School.