Bill C-26 (S.C. 2012 c. 9)
Reforms to Self-Defence and
Defence of Property:
Technical Guide for Practitioners
E. Defence of Property – Detailed Examination of New Section 35 of the Criminal Code
35. (1) A person is not guilty of an offence if
- (a) they either believe on reasonable grounds that they are in peaceable possession of property or are acting under the authority of, or lawfully assisting, a person whom they believe on reasonable grounds is in peaceable possession of property;
Pre-condition of "peaceable possession"
No change from the old law.
The defence of property can arise when a person's "peaceable possession" of property is threatened or challenged by another, such as by a person who is trying to take or damage the property or trespass on it. Peaceable possession was a fundamental concept in the old law and is retained in the new defence of property provision.
The concept of "peaceable possession" has been interpreted to mean that the possession of the property must not be seriously challenged by others. The seriousness of the challenge is not assessed by looking at the relative strengths of legal title or other legal claims, but rather, whether any challenge is likely to result in a breach of the peace.Footnote 16
The criminal law is concerned about maintaining public order and, accordingly, the requirement of peaceable possession reflects this objective by limiting the defence, which exonerates otherwise criminal conduct, to circumstances where it is appropriate. For instance, it ensures that a person who is not in peaceable possession of property – such as a thief in possession of stolen property or a protester occupying a government building – will not have access to the defence if they resist efforts of others to enter or re-take property. It also functions to prevent the defence from being invoked by a property owner who commits an offence in order to recover or re-take property that is not in their possession. For instance, a person is not entitled to invoke the defence against a charge that they broke into their friend's parking garage to retrieve their car where the friend has refused to return it. Rather, a person who is not actually in possession of property they have a claim to must have resort to the civil law, or seek assistance from other authorities such as the police, to resolve a conflict over their entitlement to the property. A person must not resort to the commission of a crime in such non-urgent situations.
It should also be noted that the defence is expressly available to anyone acting under the authority of, or lawfully assisting a property possessor, so long as the assistor reasonably believes that the other person actually has peaceable possession.
35 (1)(b) they believe on reasonable grounds that another person
- (i) is about to enter, is entering or has entered the property without being entitled by law to do so,
- (ii) is about to take the property, is doing so or has just done so, or
- (iii) is about to damage or destroy the property, or make it inoperative, or is doing so;
Unlike an unwanted interference with bodily integrity, which is a straightforward concept that can be expressed simply, interferences with property can take many different forms. The types of interferences that can trigger a defensive response are itemized in new subparagraphs 35(1)(b)(i) through (iii).
Under the old law, the various forms of interference were addressed in distinct defences. The new law provides one single defence applicable regardless of the nature of the property interference.
Like the new law of self-defence, the new law of defence of property expressly requires that the triggering threat to be assessed on a combined subjective (i.e. what the accused honestly believed) and objective (i.e. would the "reasonable person" also share the accused's belief) basis. This approach appears to be generally consistent with the interpretation given to various versions of the old defence of property. This interpretation allows for reasonable mistakes as to the factual circumstances that give rise to the defence.
35(1)(c) the act that constitutes the offence is committed for the purpose of
- (i) preventing the other person from entering the property, or removing that person from the property, or
- (ii) preventing the other person from taking, damaging or destroying the property or from making it inoperative, or retaking the property from that person; and
Just as the new law of defence of person contains an express "defensive purpose" requirement, so does the new law of defence of property. The new paragraph 35(1)(c) must of necessity be more precise in relating the defensive purpose to the nature of the property interference that triggers the defence in any particular case. It is to be assessed on a purely subjective basis.
35(1)(d) the act committed is reasonable in the circumstances.
As with the new defence of person:
- A response in defence of property must be assessed as "reasonable in the circumstances", namely on an objective basis; and
- A response in defence of property may involve any "act", not necessarily the "use of force" as was required by the text of the old law.
Although there is no express limitation on the amount of force that may be used to defend property from interference, Canadian courts have unambiguously held that it is not reasonable to use deadly force in defence of property alone (i.e. where there is not a simultaneous threat to human life or safety).Footnote 17 A dwelling-house is a special kind of property – threats in relation to a dwelling house typically also create an element of personal danger which likely is enough to trigger defence of the person, which does allow for deadly force to be used. Many other types of property disputes may escalate and give rise to threats to personal safety, thereby potentially allowing use of force (or other defensive acts) in self-defence.
35(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.
New subsection 35(2) provides a special rule excluding application of the defence where the initial property possessor has a weak claim to the property (i.e. "does not have a claim of right") and the person who interfered with the property is "entitled to its possession by law". In essence, this is a scenario where the person who interferes with another's possession has a better legal claim to the property. The person who interferes is not entitled to claim the defence against any criminal offences committed to obtain or otherwise deal with the property (i.e. as they did not begin the encounter in "peaceable possession" of the property, the defence is not available to them as a means of re-acquiring it). However, at the same time, the possessor of the property (and anyone acting to assist them or under their authority) is also not entitled to invoke the defence to justify any criminal acts committed in these circumstances for the purpose of retaining the property or resisting the interference. This rule is consistent with the level of protection provided to property possessors under the old law.
35(3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully.
See discussion above under new subsection 34(3). In the case of defence of property, law enforcement action that could trigger a defence claim could involve the execution of a search warrant and/or seizure of property during the course of an investigation.
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