Botwood home invasion raises questions about right to protect property

This weekend's home invasion in Botwood has raised questions about what people can do to protect their own safety at home.

Gilbert Budgell, 53, is facing charges of second-degreemurder and unlawful possession of a firearm. He had originally been charged with attempted murder, but the charge was upgraded when a man shot at his house later died in hospital.

• Man shot during Botwood home invasion dead, Gilbert Budgell charged with murder
• Gilbert Budgell appears in court on Botwood attempted murder charge

RCMP say two men entered Budgell'shome during the evening of Saturday, April 9 in what they called atargeted home invasion.

Police say Budgell shot one of the suspects, and a second suspect fled on foot.

This incident has people wondering what is legally allowed when protecting the safety of their own home.

CBC Central Morning's LeighAnne Power spoke with lawyer Erin Breen, ofSimmonds and Partners in St. John's.

Q: What does the law say about what you're allowed to do if someone should enter your home without your permission?

A: So what the law really says first of all with respect to self defense, because I think it's natural to say that most people who are in their own home, if someone enters their home without any kind of lawful authority that there may be some threat to your actual personIf you are in peaceful possession of your own home and that you are under a threat of force from another individual you are permitted to act in self defense so long as your act is reasonable in the circumstances.

That's the kicker,OK? There's a list of facts that a court would consider in determining whether your act was reasonable.

Similarly if you're defending your property, you are permitted under the law to commit an act that is reasonable under the circumstances to prevent a person from entering your home or from,you know,removing your property.

So I guess the whole focus is whether your act is reasonable and justifiable in the circumstances that you're in.

Q: So what are some of the circumstances that would factor into if it's reasonable?

A: The Criminal Code sets these out in detail at section 34 of the code so I can actually go through the factors as they are.

First of all they look at the nature of the force or threat, so that would, you know,entail examination of what it was the intruder had done or threatened you with, or their acts when they entered the home.

The court would look at the extent to which the use of force was imminent so whether you had any other means available to respond to the use of the force against you.

The court looks also at the homeowner's role in the incident.

They also look at whether any party to the incident used or threatened to use a weapon. That's a critical piece of information that the court would look at.

They also look at the size, the age, the gender the capabilities of the parties who are involved. They also look at the past relationship between the parties to the incident and whether there had been any prior threats or incidents between them.

It really naturally comes down to what is listed at Section G of Section 34 the proportionality of the persons response to the use of threat of force and whether the act committed was in response to a use or threat of force that the person knew was lawful.

So that's really the whole list of factors there and as you can see that opens up a can of worms in terms of facts that a court could take into consideration in determining whether the person has a defence.

Q: Right of course because there could be any number ofdiscrepanciesbetween what the parties agreehappened.

A: Yeah and really these cases are factually driven. It comes down to a court looking at all of the facts in the situation and the facts also have what's called a subjective and objective component.

So they look at what was in the homeowner's mind at the time this happened. Sowhat did the homeowner believe was happening in the circumstances they were in?But then they have to determine whether that belief is reasonable in the circumstances, whether it's reasonably objective.

Q: For example if someone were to come into my home in the middle of the night,I know my own response would be panic right away and fear, and even if the person didn't say anything to me if they were standing in my house I know I would be afraid and I might try to drive them away somehow. Would my fear be taken into consideration as a factor?

A: Absolutely. That's what the law considers to be your subjective belief at that time and that is given careful consideration by the court. But again then the court will look at the surrounding circumstances and say 'OKis that reasonable?Would a reasonable person accept that?' And that's called the objective component of the test.

Q: So what advice thenlegallywould you give somebody if they were to have themselves in that situation where they just discover that somebody is in their home and not given permission to be there?

A: The police will tell business owners, they will tell homeowners,they don't want people to take what are called self-help remedies or vigilante remedies.

Police, I know, would prefer that people if at all possible would contact the authorities to deal with these issues.

Sometimes time does not allow that and that's why section 34 and section 35 of the Criminal Code are here because there are times in life when we think we don't have the time or the luxury to place a phone call and that all deals with theimminency of the threat and thenature of what's going on in front of you at the time.

A lot of this comes down to common sense. As an individual, if you're in your home and there's a threat being made against you and perhaps,I don't know,if a person had a weapon, I mean you have to act very quicklyYou do under the law have the right to defend yourself and defend your property but your act has to be reasonable in the circumstance. It has to be proportional to the threat you're facing.

Q: Right, so if someone comes on your lawn you don't get to shoot them.

A: Absolutely

Q: With that in mind though we areinundatedwith American crimeprogrammingand things that areobviouslyfrom a country with different rules than we are. Do you think that people generally have a misunderstanding because of what they see on television about what they are allowed and not allowed to do?

A: They may. But I do think that the generally, the public understands that the United States has a different legal system than we do and have different constitutional rights than we do. I don't know if most people would take a drastic action unless they were really forced to do so, but you know unfortunately in Canadian Law and in our courts there's an expression well known that 'ignorance of the law is no excuse.' So we are all expected as soon as we live in Canada to understand the law and understand what we are entitled to do and what we are not entitled to do.