Many misconceptions surround Self-Defence in Canada, and Parliament tried to clarify the law in 2013 by amending the Canadian Criminal Code. This series of blogs will address five common misconceptions that we see at Schnell Hardy Jones LLP. This series is intended to provide information about Canadian Law. If you believe you were acting in Self-Defence, please contact us for legal advice.
Two defences that are codified in the Canadian Criminal Code are: s.34 Defence of Person, more commonly referred to as Self-Defence, and s.35 Defence of Property. Both of which can be found online here, http://laws-lois.justice.gc.ca/eng/acts/C-46/page-6.html
Can I use force to defend my property?
Misconception #4 – I cannot use force to defend my property
Unlike the United States, there are no “Castle Laws” in Canada, but this does not mean you are powerless to stop someone from taking your property. Like Self-Defence the Defence of Property is nuanced, and the court will consider the circumstances surrounding the incident.
For a section 35 Defence of Property to succeed the court will have to conclude that
- you were in peaceable and lawful possession of the property;
- you were preventing an unlawful taking or entering of property;
- you were only using force to prevent unlawful entering or taking of property; and
- you used reasonable force
The Criminal Code goes on to state that you cannot use this defence to stop someone who has a legal right to the property.
As written in an earlier blog, what the court will deem reasonable will depend on the circumstances, and you should not resort to lethal force in the defence of property.
