July 7th, 2012 – Matt McClure, Calgary Herald
An Alberta farmer who shot a man stealing his ATV three years ago will not spend time behind bars.
But the province’s top court ruled in a split decision Friday that Brian Russell Knight will get a criminal record for going too far in defending his personal property.
A trial judge had sentenced Knight to 90 days in jail, but the Alberta Court of Appeal substituted a suspended sentence, three months probation and 50 hours of community service for the Bashaw-area resident.
Knight’s lawyer, Balfour Der, said his client is relieved his legal ordeal is finally over.
“It took quite a toll on him and his family,” Der said.
“He’s pleased he’s not going to jail, but disappointed he will still have a record.”
Awoken in the early hours of March 26, 2009, by the sound of three men trying to load his quad into their pickup, Knight ran outside in his boxer shorts and boots, grabbing his 12-gauge shotgun as he headed out the door.
When they were accosted, two of the thieves fled in the truck while the third, Harold Groening, fired up the quad and drove off.
Knight pursued him in his car and rammed the quad into a ditch. Groening was thrown clear in the crash, but continued to flee on foot.
Knight then took the shotgun out of the back of his car and fired two rounds. While one of the blasts felled the thief, he got up and kept running.
Found later by another farmer, Groening was returned to the scene of the incident. Numerous shotgun pellets were embedded in his skin and he had to be hospitalized for a period of time.
Groening was given 30 days for the theft, one-third of Knight’s initial sentence after he pleaded guilty to a charge of criminal negligence causing injury.
In the majority decision, Chief Justice Catherine Fraser took issue with the trial judge’s characterization of Knight’s actions as “vigilante justice.”
Fraser noted the law allows an owner to take back personal property from a trespasser who has taken it providing the owner does not strike him or cause bodily harm. But she found Knight had used excessive force in discharging his shotgun.
“We cannot ignore the legitimate concern about escalation of social disorder if self-help violence with the use of firearms in circumstances such as these is not clearly marked as criminal conduct,” Fraser said.
“Knight’s degree of responsibility should be measured against the speed of events, the excitement of the occasion into which he was plunged without notice . . . Groening’s persistence in both the theft and the flight, and the absence of any finding that Knight intended to do any serious harm.”
In a partial dissent, Justice Clifton O’Brien said he would have given Knight the conditional discharge sought by his lawyer because he was legally entitled to make a citizen’s arrest.
“It is irrelevant that Knight was down the road from his property and not at risk,” O’Brien said.
“He was not obliged to wave Groening goodbye as he fled the scene.”
O’Brien said Knight’s crime was the reckless use of the shotgun, conduct that created danger but was not an intentional act of violence.
He said a criminal record was not necessary to alert the community to be cautious in dealing with Knight, a “productive, law-abiding member of his community,” and that a mandatory 10-year ban on possessing a firearm was punishment enough.
Der said the decision doesn’t change the law that limits individuals to using reasonable force to protect themselves or their property.
“But it does show that if you do go too far, your final sentence will depend very much on whether the circumstances were mitigating,” he said.