It is normally a criminal offence to apply force to another person’s body without their consent. However, Canadian law recognizes certain circumstances where an individual is justified in using physical force against another person. One example is where a person uses force to defend or protect their property from being entered, taken, damaged or destroyed. While many Canadians have personal beliefs about when, how much, and in what circumstances the use of force is justified, Canadian law has very specific rules about when you can defend your property.
Defence of property can raise many complicated legal issues. If your actions were done to protect your property, you should contact a lawyer at Pringle Chivers Sparks Teskey to discuss your case.
WHEN CAN I DEFEND MY PROPERTY?
If you have been accused of a crime, it is not enough to simply claim that you were acting in self defence or were defending property that was rightfully yours. Canadian law has a narrow test that sets out when these defences can apply. Defence of property is found in section 35 of the Criminal Code of Canada. It is not the accused’s responsibility to prove that what he did was to protect his property. Rather, it is the Crown prosecutor’s responsibility to prove, beyond a reasonable doubt, that the accused was not acting in defence of his or her property.
Defence of property typically applies to the defence of one’s own property. Property includes someone’s home or any other form of personal property, for example, a farm, pet or vehicle. There may be times, however, where the accused was assisting someone else who they believed was in possession of the property. The defence of property is available in those circumstances as well, and you should talk to a lawyer about whether the defence of property would still apply in your particular situation.
Defence of property requires that:
- The accused person believes, on reasonable grounds, that he or she was in peaceable possession of the property;
- The accused believed on reasonable grounds that the complainant was about to enter, was entering or had entered the property without lawful authority or was about to take the property, was taking, or had taken the property, or was about to damage or destroy the property;
- The accused’s actions were done for the purpose of preventing that from happening and;
- The accused’s actions were reasonable in the circumstances.
This four-part test is the foundation for the defence of property and is broken down in detail below.
PART ONE – POSSESSION
Did the accused believe, on reasonable grounds, that he was in peaceable possession of the property?
This is the first step of the test. The defence of property only applies where the accused reasonably believed he was in peaceable possession of the property. Peaceable possession means that the accused had possession of the property without anyone else having any recent, serious claim that he was not lawfully entitled to be in such possession.
PART TWO – THREAT TO PROPERTY
Did the accused believe on reasonable grounds that the complainant entering, taking, damaging, or destroying the property?
Second, the accused must have believed, on reasonable grounds that the complainant:
- Was about to enter, was entering, or had entered the property without being entitled by law to do so;
- Was about to take the property, was taking, or had taken the property; or
- Was about to damage or destroy the property or make the property inoperative or was doing so.
This question asks what the accused believed at the time of the incident. This is not a question of whether the accused’s property was actually being threatened, but instead, whether the person reasonably believed in the circumstances that it was. Someone may be mistaken about this, but as long as their belief was reasonable in the circumstances known to them at the time, this element may still be established.
This element is concerned with the accused’s state of mind at the time. A judge or jury will consider what both the accused person and the complainant did or didn’t do, how each person acted, and what was said, if anything. While the threat to property doesn’t necessarily have to be immediate, any immediacy or lack there of will play into the evaluation of whether the accused’s belief was reasonable in the circumstances.
Although the focus at this stage is on the accused’s state of mind, their belief is not left completely unchecked. The accused’s belief will be compared to what a “reasonable person” would have believed in the same circumstances. Would any other reasonable person, in the circumstances of the accused have thought the same thing as him or her? Would they also have believed that their property was in danger of being entered, taken, damaged or destroyed? Keep in mind, the “reasonable person” is an ordinary, average, person. This is someone who is sober, sane, and can exercise proper judgement and self-control. This is not someone who is overly angry, aggressive, intoxicated, sensitive, excitable, belligerent etc.
PART THREE – PURPOSE
Were the actions of the accused done for the purpose of defending or protecting his or her property?
Third, the accused’s actions must have been done for protecting or defending their property from being entered, taken, damaged or destroyed. Like the second element, this also deals with what was in the mind of the accused at the time. If the accused’s act was not done for the purpose of defending or protecting his property, for example, if he hit the complainant when he opened the door by accident, or if his actions were motivated by revenge or spite, this element of the defence will fail and the accused cannot said to have been acting lawfully in defence of his property. To determine what the purpose of the accused’s act was, the judge or jury will again consider what each person did or did not do, how each person acted, and what was said, if anything. The focus here is why the accused committed the act that would otherwise be a criminal offence. What was his or her motivation?
PART FOUR – REASONABLE RESPONSE
Was the accused’s conduct reasonable in the circumstances?
The last part of the test asks whether the accused’s conduct was a reasonable response to the perceived entry, taking, or destruction of his property. Unlike the other two parts of the test, the question here is not whether the accused believed his or her response was reasonable, but rather, whether what the accused did was a reasonable thing to do in all the circumstances. People are not expected to respond perfectly and there may be a variety of possible responses that would be reasonable. The actions of the accused person will be compared to an ordinary, reasonable person. Again, the “reasonable person” is an ordinary, average, person; someone who is sober, sane, and can exercise proper judgement and self-control.
The judge or jury will consider all the circumstances of the case when deciding whether the act of the accused person was reasonable in the circumstances. While not required, they would likely consider similar factors to those considered in self defence cases including:
- The nature of the force or threat;
- The extent to which the use of force was imminent and whether there were other means available to respond to the potential use of force;
- The person’s role in the incident;
- Whether any party to the incident used or threatened to use a weapon;
- The size, age, gender and physical capabilities of the parties to the incident;
- The nature, duration and history of any relationship between the parties to the incident, including any prior use or threat of force and the nature of that force or threat;
- Any history of interaction or communication between the parties to the incident;
- The nature and proportionality of the person’s response to the use or threat of force; and
- Whether the act committed was in response to a use or threat of force that the person knew was lawful.
The judge or jury can consider any other factors that may be important when determining whether the actions of the accused were a reasonable response in the circumstances. Here, the “reasonable person” that the accused is compared to is a person of the same age, gender, and physical capabilities as the accused. The reasonable person at this stage also has the same history with the complainant as the accused. Neither the reasonable person nor the accused is expected to know exactly how much force is required to achieve the purpose of defending their property, but again, the use of force has limits and must be reasonable in the circumstances. The law recognizes that there is no one correct reply.
ONUS ON THE CROWN
It is not the job of the accused to prove he was acting in defence of his property when he did whatever act would normally be considered a crime. Instead, it is the job of the Crown prosecutor to prove, beyond a reasonable doubt, that the accused was not acting in lawful defence or protection of his property. This is done if the Crown prosecutor can establish that one of the elements of the defence of property test relied on by the accused is absent. Defence of property can only be successful if all the elements of the test have been met.
For example, let’s say A and B are neighbors in an apartment complex. A is 24 years old and likes to play his music at night and drink with friends. B is 73 years old and requires a lot of sleep. She is always banging on the wall screaming at A to shut up. One night, despite B’s non-stop banging on the wall, A’s music just seems to get louder and louder. B has had enough. B walks over to A’s apartment and aggressively bangs on the door. When A answers, B tries to move past him to enter his suite. She wants to teach A and his friends a lesson. A pulls out a knife and stabs B in her thigh. A is charged but claims he was defending his property.
In this example, the first three stages of the test are made out. First, A is in peaceable possession of his own apartment suite. Second, A reasonably believed B was about to enter, or was entering his apartment when she tried to move past him. Third, A’s action of retrieving his knife and stabbing B in the thigh was done for the purpose of preventing B from entering his apartment suite. However, in this case, the Crown would likely convince the court that A’s actions were not reasonable in the circumstances. The Crown would argue that unlike A, B did not have a weapon or threaten to use a weapon. A was a 24-year-old male, and B, a 73-year-old woman. Moreover, A’s response of stabbing B was disproportionate to A’s attempt to move past him. While the law does not demand there be one correct response, the Crown in this case would likely be successful in disproving, beyond a reasonable doubt, that the accused’s actions were reasonable in the circumstances.
Although it is the job of the Crown prosecutor to establish that at least one element of the test is absent, the accused does have the responsibility of providing the Court with enough evidence to put the defence into play. This is usually done by the accused taking the stand and testifying in his own defence. Although an accused person has the right to silence and never has to testify, it is common when advancing a defence of property argument for the accused to testify to meet this basic threshold. The decision to testify and the impact it may have on your case can be complicated and it’s crucial that you talk to a lawyer when making these types of decisions.
WHEN CAN I NOT DEFEND MY PROPERTY?
There are certain cases where an accused person cannot argue that he was defending or protecting his property. Even if the four elements of the test have been made out, section 35(2) of the Criminal Code prevents the accused from relying on defence of property if the complainant was entitled to possess the property by law and if the accused did not have a claim of right to the property. This is a complex aspect of the defence of property and requires additional legal advice. If this is an issue in your case, you need to contact a lawyer to discuss this in more detail.
The Criminal Code also prevents people from using force to defend or protect their property against someone who is doing something that they are required or authorized by law to do in the administration or enforcement of the law. For example, if the police knock on your front door and present you with a search warrant to search your home or property, you are not entitled to use force to remove them from your property and claim you were protecting your property. Defence of property will only apply in cases involving law enforcement if the accused person believes, on reasonable grounds, that the police are are acting unlawfully. The accused may be able to rely on this defence if they believe, even mistakenly, but on reasonable grounds that the other person is somehow breaking the law. Again, this is a complex area of the law and requires legal advice.
Intoxication may also impact a person’s ability to rely on defence of property. Keep in mind that the actions of the accused are compared to a reasonable person. The reasonable person is sober and sane. A person’s level of intoxication is not a legal excuse or justification for why they acted the way they did. Similarly, a mistake that is caused by poor judgement or excessive intoxication is not a mistake based on reasonable grounds.
HIRING A LAWYER
While most people have a general idea of when force can be used to protect or defend their property, Canadian law has set very specific boundaries on when it can apply. Although it may seem straightforward, there are many factors that can impact the success of this defence at trial. If you are charged with a criminal offence and your actions were done for the purpose of defending your property, it is important that you talk to a lawyer at Pringle Chivers Sparks Teskey about how to best advance your defence. Please contact us for a free consultation.