Bill C-26 (S.C. 2012 c. 9)
Reforms to Self-Defence and
Defence of Property:
Technical Guide for Practitioners

B. New Defence of Property Overview

The old law of defence of property was subject to many of the same criticisms as the old law of self-defence. There were multiple iterations of the defence, each applicable in a slightly different set of circumstances, such as whether the property was movable or immovable, and whether the property defender and the property-taker or trespasser had similar or differing levels of claims to the property in question. There were additional complex and confusing elements of the old law, such as deeming clauses that addressed conditions under which resistance to a property defender amounted to assault, the consequence of which was to trigger the old self-defence laws.

As was the case with the old defence of the person laws, each specific defence of property rule was merely a narrow expression of a more general set of principles. The objective behind Bill C-26's legislative reform was to reduce the number of defences to one single defence that, by virtue of its codification of core defence elements, can be applied in any defence of property situation. In keeping with the common law treatment of defence of property and defence of person as two subspecies of the larger concept of "private defence", the new law of defence of property mirrors the structure of the new law of defence of person.

Defence of property is necessarily more complex than defence of person. This is because there are many more ways of interfering with property than there are of interfering with a person's bodily integrity, and because a single item of property may be subject to multiple claims, of varying legal strengths, by any number of individuals. As well, property claims are generally a matter of provincial laws (a range of provincial laws may govern any particular situation, ranging from general property laws to family laws and laws in relation to wills and estates, for example), and citizens are often unaware of, or mistaken about, aspects of various matters of private law, further complicating the assessment of defence of property claims.

The purpose of the criminal law in this area is not to adjudge property disputes or to enable people to behave violently against each because they are having such a dispute. Rather, the function of the defence of property is to protect against breaches of the peace and promote public order. For this reason, a pre-condition to accessing the defence is that the person invoking it was (or believed themselves to be) in "peaceable possession" of the property when the need to defend or protect the property arose. Only where property comes under an imminent threat of some kind does the criminal law permit otherwise criminal acts to be committed to defend or protect the property.

In developing the new law, great care was taken to ensure that the same degree of authority to defend property under the old law was maintained under the new law. Overall, then, a successful claim of defence of property requires:

The new defence of property contains the same special rule for a claim of defensive action against law enforcement conduct (e.g. the execution of a search warrant or the seizure of property as evidence). It also contains a distinct special rule that addresses the situation where the victim of the defender's action had a better claim to the property than did the defender, which is retained from the old law.

The new defence of property does not contain a list of factors to assist the court in determining whether the accused's actions were reasonable in the circumstances. Of course, many factors will be relevant to this determination, potentially many more factors than arise in defence of person cases, because the nature of property and the interests people have in it are so varied and immense. This makes the creation of a list of factors more difficult than it is for defence of the person. The absence of a list of factors for the new defence of property should not be taken to mean that factors on the list under the new self-defence provision could not be relevant in a defence of property case. On the contrary, some factors listed in new subsection 34(2) are likely to be highly relevant (with necessary contextual modifications). For instance, proportionality between an interference with property and the accused's response will in most cases be relevant, as would be the accused's role in the incident and the presence of any weapons. The absence of a list is not intended to diminish or otherwise interfere with the consideration of any relevant factors or evidence otherwise admissible.

Defence of property is raised far less frequently than defence of person and typically for conduct that causes less serious harm and injury than defence of person situations. Moreover, where actions in defence of property are resisted, the situation almost inevitably transforms into a situation where defence of person becomes a live issue, and the accused's conduct can be assessed in accordance with that defence where appropriate.