A Colonial Castle

Defence of Property in R v Stanley

  • Alexandra Flynn University of British Columbia
  • Estair Van Wagner York University
Keywords: criminal law, property, criminal justice, defences, statutory defences, air of reality, defence of property, trespass, jury instructions, castle doctrine, Indigenous lands, Treaty relations

Abstract

In 2016, Gerald Stanley shot 22-year-old Colten Boushie in the back of the head after Boushie and his friends entered Stanley’s farm. Boushie died instantly. Stanley relied on a hangfire defence, rooted in the defence of accident, and was found not guilty by an all-white jury. Throughout the trial, Stanley invoked concerns about trespass and rural crime (particularly property crime) that raised much evidence of limited relevance to whether or not the shooting was an accident. We argue that the assertions of trespass, without formerly raising the defence of property or trespass, shaped the trial by providing a racist, anti-Indigenous-tinged narrative to try and justify, if not excuse, Stanley’s use of a deadly gun, without requiring those elements to be properly considered by the jury through a formal invocation of those defences.

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Published
2020-10-15
Section
Articles