Defence of Property (Pre-2013 Amendments)

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Defence of Personal Property (Pre-2013 Amendments)

Defence of personal property
38. (1) Every one who is in peaceable possession of personal property, and every one lawfully assisting him, is justified

(a) in preventing a trespasser from taking it, or
(b) in taking it from a trespasser who has taken it,

if he does not strike or cause bodily harm to the trespasser.

Assault by trespasser
(2) Where a person who is in peaceable possession of personal property lays hands on it, a trespasser who persists in attempting to keep it or take it from him or from any one lawfully assisting him shall be deemed to commit an assault without justification or provocation.
R.S., c. C-34, s. 38.

Defence with claim of right
39. (1) Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary.
Defence without claim of right
(2) Every one who is in peaceable possession of personal property, but does not claim it as of right or does not act under the authority of a person who claims it as of right, is not justified or protected from criminal responsibility for defending his possession against a person who is entitled by law to possession of it.
R.S., c. C-34, s. 39.


CCC

Under s. 39, the owner and persons acting for the owner of personal property may defend the possession of that property as long as there is "no more force than is necessary". In determining if there was "no more force than is necessary" requires the judge to consider all the circumstances such as the accused's state of mind and belief that force was necessary. Factors to consider include:[1]

  1. nature of the property
  2. the value (financial and sentimental) of the property
  3. risk of harm to the property
  4. alternative options to accused
  1. R v Szczerbaniwicz, 2008 CM 2008 (CanLII) upheld at 2010 SCC 15 (CanLII)

Trespassing and Unlawful entry (Pre-2013 Amendments)

Defence of dwelling
40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.
R.S., c. C-34, s. 40.

Defence of house or real property
41. (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.
Assault by trespasser
(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.
R.S., c. C-34, s. 41.


CCC

The defence of house or real property is available where:

  1. Where a homeowner has reasonable grounds to believe that the victim was a trespasser[1]
  2. the trespasser had reasonable opportunity to withdraw after they ought to have realized they were trespassing,
  3. the trespasser did not withdraw
  4. the threat of force or actual force must not be more than was reasonable under the circumstances
  5. the threat of force or actual force was no more than what the accused reasonably believed was necessary to remove the trespasser

A trespasser can include the police who are not lawfully in the dwelling house.[2]

A dwelling house includes hallways and stairwells,[3] as well as stores.[4]

There is no obligation to retreat when defending a dwelling house.[5]

A person who is lawfully on a premises, but is told to leave, must "be given a reasonable opportunity to leave the property before actual force can be used."[6]

Any force used that was above and beyond force necessary to defend property is criminally liable.[7]

  1. R v Keating, 1992 CanLII 2511 (NS CA), (1992) 76 CCC 570
    R v Krzychowiec 2004 NSPC 60 (CanLII)
  2. R v Kephart and Oliver, 1988 ABCA 325 (CanLII), [1988] 44 CCC (3d) 97
  3. Krzychowiec
  4. R v Lee, 2003 ABPC 115 (CanLII)
  5. R v Clark, 1983 ABCA 65 (CanLII), [1983] 5 CCC (3d) 218
  6. R v Doiron, 2013 NBCA 31 (CanLII) at para 36 per Richard J
  7. see s.26
    R v Figueira (1981), 63 CCC 2d 409 (ONCA) (*no link)
    c.f. R v Paquin, 1983 CanLII 2386 (SK QB), (1983), 29 Sask. R. 78 (SKQB)

Cases

See Also