02/08/2012 05:42 EST | Updated 04/09/2012 05:12 EDT

Self Defence Law: Justice Minister Rob Nicholson Says Firing Warning Shots Reasonable Response Under New Legislation

OTTAWA - The lawyer for an Ontario man who was charged after firing his revolver to scare off would-be arsonists attacking his home says Justice Minister Rob Nicholson is on the right track with changes to the self-defence law.

Nicholson raised opposition eyebrows this week when he agreed during a committee hearing that firing a warning shot over the heads of property thieves or intruders would be considered a reasonable response under the new law.

The minister's answer to a friendly question from an Alberta Conservative MP had New Democrats and Liberals grousing about vigilante justice. And it drew a cool reaction from the president of the Canadian Police Association and alarm from the Canadian Bar Association.

But lawyer Edward Burlew, who has defended a host of firearms-related cases, said changes to the law will simply address the reality of some circumstances.

"You can't always call 911 to get a cop. Things are over by then. It's too late," Burlew said in an interview from his office in Thornhill, Ont.

"These types of situations are generally over in under a minute, perhaps two minutes. They're quick, fast incidents."

Burlew represents Ian Thompson of Port Colborne, Ont., who was charged in 2010 after a dispute with neighbours escalated to the point where they attacked his home with Molotov cocktails.

Thompson, a former firearms instructor, emerged from his house and fired three shots — one in the ground and two into the treetops — to scare off the attackers.

The charges against Thompson for careless use of a firearm were dropped in January 2011, but he still faces two charges related to weapons storage.

"I don't think any minister of the Crown would say, 'keep your gun out ready to rock and roll, in case.' We still have safe storage laws," said Burlew.

"But if you're a gun owner and you know how to access your firearms quickly to be able to defend yourself if the need arises, well I think that's a legitimate thing."

Burlew said he's aware of at least a dozen cases in which people have been charged for firing warning shots — an issue that was clearly on the mind of Fort McMurray MP Brian Jean this week at the House of Commons justice committee.

MPs are studying a relatively uncontroversial bill that will clarify and simplify the law on citizen's arrests, self-defence and the defence of private property.

Jean raised "some cases in Alberta" in which people have stolen all-terrain vehicles or other personal property, then used "firearms shot in the air, or shot around the people (trespassing)."

"Would that be a reasonable use of defence in the circumstances?" he asked Nicholson.

"I think it is," responded the justice minister.

The scenario has echoes of a high-profile case in which a central Alberta farmer, Brian Knight, shot and wounded a man stealing his ATV and was sentenced to 90 days in jail.

The Canadian Bar Association said Nicholson is sending a bad message in a very nuanced area of the law.

Eric Gottardi, vice-chair of the CBA's criminal justice section, called it "particularly unfortunate" that the minister chose to endorse even the concept of warning shots.

"All it's going to take is someone to shoot 10 inches too low in the dark and take someone's head off and that person is going to be up on murder charges," said Gottardi.

"They're going to be looking to the minister and looking to this law to protect them. We don't think it's a good idea."

The new law broadens the rules for citizen's arrest and self-defence, said the Vancouver lawyer.

"I would think that the last thing the government wants is to even have a perception out there in the public that people now have this much broader, more robust set of protections to make arrests or take extreme measures to defend their property."

Opposition MPs agreed.

"Shooting a gun over their heads is essentially threatening to shoot them," said NDP justice critic Jack Harris. "That seems to me to be unreasonable."

"We've got to be very cautious that we don't encourage any sense of vigilantism in this country," said Liberal MP Irwin Cotler, a former justice minister.

Tom Stamatakis, the president of the Canadian Police Association, said the front-line officers he represents always want people to call police first for any threat.

"As an ex-firearms instructor and someone that's very familiar with firearms, one of the most important things to consider when you are handling a firearm or discharging a firearm is to know where any round that you fire may end up," Stamatakis said of warning shots.

"I don't think the preferred approach is to encourage citizens to take matters into their own hands."

But Gary Mauser, a firearms expert and professor emeritus at Simon Fraser University, doesn't believe Nicholson overstepped the bounds or sent a bad signal.

"The opposition is quite right to focus on the delicate balance that the Crown must take with respect to self defence, citizen's powers of arrest and the powers of the law," Mauser said in an interview.

But he pointed out the scenario of someone facing an attacking intruder in the dark and the "natural human right" to stop that attack.

"Exactly the details of such cases is what the knife-edge of legality depends upon," said Mauser.

The Commons justice committee will resume its hearings on the reforms to the citizen's arrest and self defence law Thursday.

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