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Chapter 7.1.4

LAWS 2302 Chapter Notes - Chapter 7.1.4: New Trial, Oldman River

Course Code
LAWS 2302
Michael Smith

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Defence of Property: If the property is personal under section 38,
then you have the right to prevent someone from taking it or take it
back, if you do not strike or cause bodily harm to the trespasser. If
trespasser is deemed to commit an unprovoked assault your actions
are covered by self-defence. If someone breaks into your house,
you may use as much force as necessary to remove that person
(section 40-41).
R. v. Born With a Tooth
The accused, a member of the Peigan Indian Band, was charged and
convicted of various offences including obstruction of peace officers,
possession of a firearm for a dangerous purpose, pointing a rifle and
assaulting peace officers. The accused relied on a defence of property
under s.41(1) of the Criminal Code, R.S.C. 1985, c.C-46. The incident
occurred on the banks of the Oldman River where it flows through the
Peigan Indian Reserve. The Peigan Band long ago surrendered a
narrow strip of land along the Oldman River to Alberta. Alberta holds
title to this land under the Land Titles Act, R.S.A. 1980, c.L-5. This
parcel, with other parcels, has been referred to as the "right of way".
The riverbank, included in the right of way held by Alberta, was built
up to form a dyke as part of the irrigation system in that area. Prior to
the incident the accused and some other band members, together with
some well-wishers, set up a camp near the dyke but not on the right of
way. Officers from Alberta Environment noted a hole in the dyke and
obtained an injunction from the court against interference with access
to the right of way by government employees for the purpose of
restoring and maintaining the irrigation system When workers,
accompanied by R.C.M.P., moved across the reserve towards the right
of way, the accused and others called them trespassers and threw
rocks at them. When they closed to a short distance the accused fired
his rifle into the air.
The accused alleged that the trial judge failed to admit evidence
relevant to the defence theory and that he had limited cross-
examination designed to raise a doubt with the jury about the true
intentions of the R.C.M.P.
Appeal allowed; New trial ordered
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