Wednesday, September 25, 2019

the homeowner needs to be a reasonable person, it is true, but you also expect the court to be reasonable.

you could imagine a situation where a homeowner exits his house and chases the trespasser down, or doesn't give him a fair chance to leave before he shoots, or any other such aggressive behaviour. i think that most people would see something wrong with this, because our concepts of property are not absolute; the difference between you and i on this point is probably just that i'm willing to admit it, and you're not. a part of this comes in recognizing that trespassing can't be seen as an absolute wrong - he could have been in a car crash and looking for somebody to help his injured wife, or he could have been out hiking and convinced he was being hunted by a cougar, or he could be mentally ill and trying to find the end of the rainbow. you can't just assume that the motives of the trespasser are nefarious, and because you can't assume that, an over-reaction can't be justified by exposing the motives as nefarious, if they are, either. it's the homeowner's responsibility to try and establish the actual facts before acting, and they're consequently responsible for the consequences of failing to do so.

but, the court being reasonable means recognizing the limitations and stress that the homeowner is under.

i'd have to look at the exact facts fairly closely to make an informed analysis, and i'm not going to do that, but the trespasser has a hard case to make here.

https://www.cbc.ca/news/canada/calgary/alberta-landowner-sued-by-injured-trespasser-precedent-lawyer-1.5296804

the liberals are supposed to do better than this.