Episode 40 of the Ideablawg Podcasts on the Criminal Code of Canada: Section 35 - Defence of Property

Defending property is an ancient activity. The concept goes hand in hand with the old adage that a person’s home is his or her castle. That proverb became a legal principle, known as the “castle doctrine,” when Lord Coke commented in Semayne’s Case (1604), 77 E.R. 194 (K.B.) “that the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.” Therefore property, land, and defence are inextricably intertwined both socially and legally.

As mentioned in the previous podcast, the defence provisions underwent a complete make over in 2013 resulting in a pared down defence of property section. Section 35 is a lengthy section and is as follows:

       (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;

           (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;

(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

 (d) the act committed is reasonable in the circumstances.

                   (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.

                (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.

Similar to defence of the person, defence of the property involves an objective/subjective assessment. The person relying on the defence must have an honest but reasonable belief that they either have or are assisting someone who has “peaceable possession” of the property. In considering the meaning of the phrase “peaceable possession” the Alberta Court of Appeal in the 1992 Born with a Tooth case cautioned that “peaceable” should not be equated with “peaceful.” According to Stephen’s 1883 treatise, A History of the Criminal Law of England, the phrase describes possession of property, which does not provoke a breach of the peace. Therefore, “peaceable possession” is possession of property in which the community accepts and in which there are no adverse claims. This requirement is in place to discourage the use of force in property disputes, which appeared to be the norm in Medieval England. This concept will be discussed more thoroughly when we arrive at s. 72 relating to forcible entry and detainer.

Not only must the accused have a reasonable belief she has peaceable possession but she must also have a reasonable belief that the other person is entering the property unlawfully or for an unlawful purpose such as damaging or taking the property for which the accused has peaceable possession. If this holds true, then the accused may rely on the defence if the force used is for the purpose of preventing the unlawful act or removing someone after they have committed or are about to commit the unlawful act relating to the property.

Additionally, the force used must be reasonable in the circumstances. The circumstances will of course vary depending on the facts of each particular case. It must be emphasized that the force used must be connected to ejecting the person from the property or preventing the person from taking the property. If the force is not used for that specific purpose, the accused cannot rely on this section but must instead rely upon the self defence section 34.

Subsection 2 and 3 outline the situations in which the defence does not apply. In subsection 2, the accused cannot rely on the defence if he or she does not have a claim of right to the property and the other person is entitled by law to possess it even though the accused reasonably believed he had peaceable possession.

This means that if the other person has a lawful right to the property, the accused cannot rely on the defence unless he has a “colour of right” to the property. Colour of right is a common law defence based on a mistake of law. An accused would have a claim of right if she has an honest but mistaken belief in a legal right or claim to a thing even if unfounded in law or in fact. Such a belief must be honestly held but not reasonably held. The “defence” of colour of right will be discussed further when we arrive at those sections where the defence is statutorily available such as theft pursuant to s. 322.

Subsection 3 applies in circumstances where the other person is exercising a lawful authority by entering the property or by attempting to take the property as in the situation of a bailiff seizing property to satisfy judgment. However, if the accused reasonably believes the person is acting unlawfully then he or she may still rely on the defence.

As with s. 34, this is a relatively new section and there is very little case law applying it. However, previous case law from the Supreme Court of Canada respecting the scope of defence of the property suggests that the force used can amount to more than a minor assault against a trespasser and may also involve the use of a weapon. Whether or not the force used in those circumstances is excessive would depend on the facts of each particular case.