See R. v. Born With a Tooth (1992), 76 CCC (3d) 169 (Alta CA); R. v. George (2000), 145 CCC (3d) 405 (Ont CA). Arrest and the prevention of crime are governed by the Criminal Law Act 1967. 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. Defence and Defence of Property Provisions Kent Roach* The new sections 34 and 35 of the Criminal Code replace and simplify the old sections 34–42 of the Criminal Code. Peaceable possession was a fundamental concept in the old law and is retained in the new defence of property provision. Just as the new law of defence of person contains an express "defensive purpose" requirement, so does the new law of defence of property. 448 - Interpretation; 449 - Making; 450 - Possession; 452 - Uttering; 455 - Defacing or Impairing [1], The force must be "no more force than is reasonably necessary". Amendments to the defence of property provisions have also repealed sections 38-42 of the Criminal Code in favour of one new defence of property provision. 428 - PART XI - Wilful and Forbidden Acts in Respect of Certain Property. Criminal Code. 67. (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; The critical but illusive issue under the new self-defence and defence of property provisions will be whether acts are “reasona-ble in the circumstances.” The new law provides one single defence applicable regardless of the nature of the property interference. Justia - California Criminal Jury Instructions (CALCRIM) (2020) 3476. 69. Defense of Property. For example, a person charged with stealing as a result of writing company cheques payable to themselves, cashing those cheques and keeping the money may say they have a claim of right if: Property can be real or personal. 35 (1) A person is not guilty of an offence if. The force was used against the actual wrongdoer; and 2. 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. Criminal Code. Accused person to be sent to district where offence committed. It must be necessary for the lawful purpose of removing a trespasser. what the accused honestly believed) and objective (i.e. [2] One new defence of property provision would be created, eliminating the many distinctions regarding acts a person can take in defence of different types of property. The concept of "peaceable possession" has been interpreted to mean that the possession of the property must not be seriously challenged by others. All jurisdictions allow individuals to use force in defense of property under certain specified circumstances. Criminal Procedure Code CAP. Defence — property. For property offences, however, it is a defence to show that the person broke the law by acting in the exercise of an honest claim of right and without any intention to defraud (s 22 Criminal Code). This section offers guidance of general application to all offences susceptible to the defences of: 1. self defence; 2. defence of another; 3. prevention of crime; and 4. lawful arrest and apprehension of offenders. This defence is contained under the provision of S. 23 of the Criminal Code. 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. would the "reasonable person" also share the accused's belief) basis. This … 75 C44 - 5 [Issue 1] PART IV – PROVISIONS RELATING TO ALL CRIMINAL INVESTIGATIONS PLACE OF TRIAL Section 66. [3], Defence of Property (Pre-2013 Amendments), http://criminalnotebook.ca/index.php?title=Defence_of_Property&oldid=54252, Creative Commons Attribution-ShareAlike License. "does not have a claim of right") and the person who interfered with the property is "entitled to its possession by law". 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. They were drafted with the laudable aim of customizing the application of self-defence to distinct circumstances that may demonstrate somewhat different moral qualities. This interpretation allows for reasonable mistakes as to the factual circumstances that give rise to the defence. With three-quarters of them based in large part upon the American Law Institute’s Model Penal Code of 1962 (MPC), they tend to be carefully drafted and highly principled. See discussion above under new subsection 34(3). 1 - Short Title; 2 - Interpretation; 3.1 - Part I. Defence of property Section 274 of the Criminal Code 1899 provides that it is lawful for a person to use reasonable force to resist a trespasser taking their property provided the person does not do grievous bodily harm to the trespasser. 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. This approach appears to be generally consistent with the interpretation given to various versions of the old defence of property. The Commissioners initially adopted the defense as it is usually de-fined by the courts and legislatures.' This ties in with Zecevic where the High Court noted that the only reasonable justification for the use of lethal force is in situations where the threat was such that the person held a reasonable apprehension that death or serious harm may be the result. Defence of the person is governed by the common law. General authority of courts. 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. Amendments to the defence of property provisions will repeal the confusing defence of property language that is now spread over five sections of the Criminal Code (s.38-42). 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. 428 - Interpretation; 430 - Mischief; 433 - Arson and Other Fires; 437 - Other Interference with Property; 444 - Animals; 445.1 - Cruelty to Animals; 448 - PART XII - Offences Relating to Currency. However, in * J. D., Northwestern University, 1973. 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 … 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. A person may use such force as is reasonable in the circumstances in the prevention of crime or in arresting offenders or suspects. 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. 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