On an otherwise unremarkable summer afternoon in 2016, five Indigenous youth drove onto a farm in rural Saskatchewan owned by 56-year-old Gerald Stanley, a White farmer. The youth came from the Red Pheasant First Nation. After a day of drinking and swimming in the South Saskatchewan River, the youth sprang a leak in a tire of their grey Ford Escape SUV. After a series of events, including the windshield of their car being smashed with a hammer and the firing of warning shots into the air, Stanley fatally shot Colten Boushie in the back of the head. At the ensuing trial, there was mixed evidence as to whether the youth wanted help or were there to steal when they entered Stanley’s farm.

The Canadian Criminal Code allows a person to defend their actions when they are protecting their property. Stanley did not use this “defence of property,” but even so, trespass and defence of property were a crucial part of his legal story. Stanley drew his gun when Boushie and his friends drove onto his rural property to fire warning shots because he thought they were stealing. The jury accepted the argument that Boushie’s death was simply an accident, a by-product of reasonable conduct to address rural crime, combined with a faulty weapon.

The Stanley case is more complicated than the story that emerged at trial. Narratives about property and “rural” property crime ran through the trial and the media coverage. In our view, the unique land-based tensions in rural Saskatchewan are profoundly important in explaining the outcome. These long-standing issues deserve attention as we work through the tragedy of Colten Boushie’s death, particularly the legal meaning of, and responses to, trespass.

Trespass and the Stanley trial

Stanley’s lawyer, Scott Spencer, opened the trial by stating that Stanley and his son, who was also on the farm that day, were not “looking for trouble” when the grey SUV pulled up. Stanley didn’t have the luxury of waiting for police to arrive on his isolated farm, counsel argued. He said the case wasn’t a defence of property case, nor was it a self-defence case. In fact, “this is really not a murder case at all,” Spencer said in court according to the trial transcript. Instead, “this is a case about what can go terribly wrong when you create a situation which is in the nature of a home invasion.” Stanley and his family “faced, essentially, intruders,” he said. “You have to look at it from Gerry [Stanley]’s perspective, what he thought when he was faced with this sudden invasion. The fear, the unknown.”

Spencer acknowledged that the young people were not on trial, but “they created this panic situation.” Spencer said it was “reasonable” to fire warning shots at intruders who were trying to steal and who were crashing into the Stanleys’ vehicle to “get them to just leave.” The defence’s version of the story emphasizes the wrongful nature of Boushie and his friends’ entry onto Stanley’s land — in other words, their trespass.

What does “trespass” mean?

Trespass is a concept in both criminal and civil law in Canada. As described in the 1959 New Brunswick Court of Appeal ruling in Mann v Saulnier, trespass means “the act of entering upon land, in the possession of another…without the legal right to do so.” Trespass laws are aimed at the “protection of possession” and control over the use of private land through the creation of a legal remedy to compensate for the invasion of one’s land, even when no damage is done to the property. While the Criminal Code has trespass provisions, criminal trespass applies in only very narrow circumstances, and not to the actions of Boushie and his friends that day. Criminal trespass is committed only when a person “loiters” or “prowls” near a dwelling house, at night, on someone else’s property and without lawful excuse. In a case called Frey v. Fedoruk, the Supreme Court has confirmed that criminal trespass was not intended to criminalize “bare trespass not amounting to an actual breach of the peace.”

Most provinces have laws creating penalties for trespass. Saskatchewan’s Trespass to Property Act provides for police arrest powers and fines for entry onto private land without an owner’s consent. The Act was created only 10 years ago, a response to concerns raised largely by farm and rural property owners and allegations of rising intrusion and property crime.

Under Saskatchewan’s trespass law, land must be “enclosed,” either by fencing or natural boundaries, or by oral or written “notice,” such as a sign. Without notice or enclosure, entry onto private property is not considered to be trespass until a request to leave has been made by the occupier and the person entering the premises has failed to leave. The owner must give a trespasser time to comply. The Stanley farm was not enclosed with a fence. The youth were not asked to leave the farm before the shooting began. Muddy shoe prints and a pair of shoes found in the long driveway suggested that some of the youth tried running away after the shooting began.

Photo: RCMP handout

The Act also requires that police be notified to enforce the arrest provisions or penalties. Stanley did not call the police until after firing his gun and killing Boushie. Had he done so, the police could have imposed a maximum fine of $2,000 for entry onto the land.

The defence of property

Criminal law has long recognized a defence of property, when a land owner has used force to remove a trespasser. However, there are limits: an alleged trespasser must be given time to comply before force is used; a defendant must show that the force could not have been less violent; and the resulting harm must be proportionate to the injury or harm it is intended to prevent. Canadian courts have held that it is unreasonable to use deadly force in defence of property alone. In a 1975 case called R. v. Baxter, the Ontario Court of Appeal specifically said that firing at a trespasser is not justifiable. While there is some ambiguity in the case law about the limits on the use of force in defence of property, the Supreme Court in R. v. Gunning found that a person could be justified in intentionally killing a trespasser only when they could make out a case of self-defence.

Stanley did not raise the defence of property, even though language like “home invasion,” “trespass” and “intruder” was part of his story. Had the defence been raised, Stanley would have had to justify why he used a gun and shot Boushie in defending his farm, which would have been difficult under the law. Open questions remain as to why the judge did not raise the defence for the jury to consider and why the Crown conceded that firing the gun at all was reasonable in the circumstances. These questions will never be answered since the Crown has decided not to appeal the verdict.

Treaty 6 territory

Trespass and the defence of property presume clear title and ownership of land — an exclusive relationship between a property owner and their land. In our view, the Stanley trial exposes a much more complex set of relations to rural property. We know the Stanley trial took place in Saskatchewan. However, many may not know it also took place in Treaty 6 territory, which encompasses a large area of land used by Indigenous peoples for thousands of years before European arrival.

Indigenous nations have always claimed jurisdiction over the area. Treaty 6 was signed in 1876 among the Cree, Assiniboine, Saulteaux and Dene, on one hand, and the Crown, on the other, but Indigenous laws were not reflected in the written text. In particular, after the signing of the treaty, the Crown divided the land into small reserves for individual First Nations, often distant from the areas that the Indigenous communities had used, and intentionally isolating communities from each other.

The creation of these reserves did not reflect Indigenous conceptions of treaty. Elders argue that there was no “cede and surrender” clause in the treaty, and that there were no words for these concepts in their languages. Obligations within Indigenous law would not allow for relationships to the land to be severed in this way. Rather, the treaty was meant to deal with the “use” of the land by settlers, as a loan, and was not a sale. The treaty relationship was based on willingness to share the land while maintaining the obligations of First Nations to the land.

The events of 1876 continue to shape Indigenous-Crown relationships today and have specific relevance to the Stanley trial. Treaty 6 includes the Red Pheasant First Nation, where Boushie and his friends lived. But the boundaries of the reserve do not reflect the historical, legal and cultural connections the Red Pheasant First Nation community has to the surrounding territory. At the same time, Saskatchewan, like other parts of Canada, continues to struggle with deeply embedded racist beliefs concerning Indigenous peoples. These beliefs are exacerbated by perceptions that thefts and property damage have increased and that Indigenous people are responsible. Groups like Farmers with Firearms have sprung up in the area to advocate for the armed defence of rural property.

PHOTO: (Information as provided by the General Photographs Collection of the Saskatoon Public Library). “First Nations celebrate 50 years of peace,” by C. Wetton, 1935. Top right: Fine Day, Lower centre: Meesegan and Lower right: Kasokio, the strong man. Back row, left to right: Tom Tootoosis (Poundmakers), Iron Child (Little Pine), Frank Knife (Sweet Grass), Peter Horsfall (Pasqua), Antoine Lonesinger (Sweet Grass), Edwin Wutunee (Red Pheasant), Mokanis (Saulteaux, Jackfish), and Fine Day. Front row left to right: Chief Swimmer, Ewesekan (Poundmakers), Kasokio, and two Stonies.”

What was agreed to under the treaty remains unsettled, so there are vastly different stories among Indigenous and non-Indigenous peoples in the area about relationships with, and claims to, the land. Criminal proceedings are not the forum in which the treaty relationship can or should be reconsidered and repaired. However, this does not mean those involved in the criminal justice system can ignore the impact of this crucial contextual background on the matters — and the lives — that come before them. Instead, legal actors and decision-makers must be required to attend to how the use of trespass narratives and terminology may compound systemic bias and invite discriminatory beliefs about both Indigenous youth and criminality and the “reasonable” fear of White property owners. In this case, the judge could have gone some way to addressing these issues by going beyond the generic caution to the jury he provided.

The outcome of the Stanley trial shows a concurrence of place-based tensions. Broken treaty promises, the loss of territory, fear of Indigenous youth and assumptions about criminality, and laws protecting private property all influenced the result of the criminal case. The safeguards under trespass laws, to give notice and time to leave, didn’t protect Boushie. Even these safeguards are now potentially being eroded as Saskatchewan considers changes to provincial trespass laws to require explicit permission to enter private land. Despite repeated references to property during the trial, the defence of property was not asserted by Stanley, nor did the judge put it before the jury. This left more room for the shooting to be cast as an accident and, therefore, for jurors to avoid the troubling question of whether Stanley was justified in taking Boushie’s life to protect his property.

Judges and jurors must be asked to confront these difficult questions or we risk upholding an implicit shift toward sanctioning the use of lethal force to protect property. Such a shift has the dangerous potential to compound place-based tensions and move us farther from a renewed treaty relationship. To put it simply, property and place matter in criminal law, and we need to start talking about them.

This article is part of What can we learn from the Stanley trial? special feature.

Photo: Caption: RCMP handout

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Estair Van Wagner is an assistant professor at Osgoode Hall Law School where she teaches and researches in the areas of property, planning, and natural resource law. She is a co-director of the Osgoode Environmental Justice and Sustainability Clinic.
Alexandra Flynn is an associate professor at the Allard School of Law, University of British Columbia, where she teaches and researches in the areas of law and cities, as well as property law, with a specific focus on housing and homelessness.

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