Alberta landowner sued by injured trespasser could set precedent, lawyer says

A Calgary-based personal injury lawyer says there is a lot to unpack in the case of an injured trespasser suing a landowner for using deadly force.

Calgary lawyer Greg Rodin says use of force is complicated

The use of force must be reasonable and commensurate with the threat of harm to the property owner, says personal injury lawyer Greg Rodin. (Andrew Brown/CBC)

Edouard Maurice says he can't believe he has to find a new lawyer. He's the homeowner near Okotoks who was charged for shooting and wounding a trespasser on his property in February of last year.

Those charges were dropped last summer, but now that trespasser, Ryan Watson, is suing Maurice for more than $100,000, claiming he suffers pain and post-traumatic stress disorder (PTSD) from the gunshot wound.

Watson, whose arm injury required surgery, was sentenced to 45 days for mischief and breaching probation after the trespassing incident.

Maurice says he and his family are in shock.

A Calgary-based personal injury lawyer says there is a lot to unpack in this case. Greg Rodin of Rodin Law Firm told The Homestretch it's not as cut and dried as some observers might think.

This interview has been edited and paraphrased for clarity and length. You can listen to the complete interview here:

Q: What do you make of this lawsuit?

A: The sympathies of many Albertans are clearly with the homeowner. From a legal perspective, though, the issues are somewhat more complicated.

The use of force must be reasonable and commensurate with the threat of harm to the property owner that is posed by the trespassing thieves, in this case.

It's not reasonable to intentionally shoot trespassing thieves where there is no threat of harm to the person or family of the homeowner.

So reasonable actions are available to try to scare off the trespassing thieves. The homeowner could flash his lights or perhaps yell out the window that they're being observed and the police have been called, that sort of thing.

In this case, perhaps going outside with a weapon on display and telling the trespassing thieves to leave would have been reasonable. Keep in mind that help from the police in a rural area is bound to be a lot slower than it would be in the city.

So I would suggest that in this case a more aggressive defence should be permitted, given the non-proximity of the police.

If the weapon discharged without intent to injure, as is claimed, and it was not reasonably foreseeable that the bullet would ricochet and cause injury, then a strong case could be made for no liability against the homeowner.

Edouard Maurice, centre, speaks to reporters outside court while holding his daughter Teal as his wife, Jessica, looks on in Okotoks, Alta., on March 9, 2018. (Jeff McIntosh/The Canadian Press)

You would have to establish, in order to prove that the homeowner is liable, that there was a foreseeable risk of harm in the actions that they took. And here the homeowner could argue to the court that, "I had a weapon with me, I had my young daughter at my home. I was afraid for her safety, for my safety. Police were not proximate. I didn't intend to hurt anybody. I intended to shoot the rifle into the ground, to scare them off, and unfortunately it ricocheted and this was the result."

If the judge accepts that, then there would be no liability because if it's not foreseeable that the bullet would ricochet, then there's no negligence and no claim.

Q: What rights do homeowners have to protect their properties in Alberta?

A: They have to use force that's commensurate with the level of threat.

So it's easy for us to look back and say, "Well, you should have done this, you should have done that."

The agony of the moment could create some behaviours which are difficult to control by the person who feels threatened.

It's never a good thing for somebody to be confronted with that situation. Mistakes happen, misjudgments happen.

I don't know what to tell homeowners.

Homeowners need to be sure that they try to dissuade the thieves or trespassers without resorting to violence, but they also need to protect themselves and their families. So it'll be interesting to see what happens in this case.

Q: How often do civil lawsuits come out of criminal cases like this?

A: I've never seen it, but they do happen from time to time, in the United States and in Canada. It's very rare. I've never seen it in my 40 years of practising law here in Canada. It does happen and it will happen again.

Q: Could this case set a precedent in Canada?

A: I think it will.

I think the facts are very interesting because there was no intent to injure, from what I could see, but an injury did occur and a weapon was brandished.

It'll be an interesting case to see what the judge does in terms of drawing that line of what's appropriate in the circumstances, what defensive measures are reasonable.

Q: Would evidence from the criminal case impact the lawsuit?

A: It would have to be freshly called in the lawsuit.

But the people who are involved in representing both sides will look at the evidence in a criminal case, the police reports, other information, witness statements, and they'll certainly use that in order to evaluate how to deal with the matter.

With files from The Homestretch