section 35(1)

INTRODUCTION AND BRIEF DESCRIPTION

A person is not guilty of an offense if they reasonably believe they are protecting property from unlawful actions and their actions are reasonable.

SECTION WORDING

35. (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.

EXPLANATION

Section 35(1) of the Criminal Code of Canada provides a defence for individuals accused of committing an offence related to the protection of property. This section allows a person to defend their actions if they believe on reasonable grounds that they or someone they are assisting are in peaceable possession of property, or if they believe another person is about to enter the property without legal entitlement, take the property, damage or destroy it, or make it inoperative. They also must have committed the act for the purpose of preventing the other person from entering the property, removing them, preventing damage or taking of the property, or retaking possession of it. For this defence to be successful, the person's actions must also be reasonable in the circumstances. This defence is commonly employed by property owners who take action to prevent trespassing or theft, or by security personnel who use force to stop individual engaging in illegal activities on property they are responsible for. However, this defence does not apply to instances of excessive force or retaliation by the accused. The use of force must be proportionate to the threat posed to the property or person, and if it exceeds what is necessary, the accused may still be found guilty of an offence. Overall, this section of the Criminal Code of Canada provides a defence for individuals who act to defend their property or that of another in a reasonable and appropriate manner.

COMMENTARY

Section 35(1) of the Criminal Code of Canada is a significant piece of legislation that recognizes the right of individuals to protect their property through self-defense. Essentially, the code provides absolute immunity to individuals who use reasonable force to prevent an unauthorized person from accessing their property or to protect their property from theft or damage. The first condition outlined in Section 35(1) is that the individual must reasonably believe that they are in "peaceable possession" of the property or assisting someone who is. This means that the person must be able to demonstrate that the property is rightfully theirs and that they are not using force to defend property that doesn't belong to them. This condition ensures that the section is not abused by people who may falsely claim ownership of property to validate the use of force and violence. The second condition requires the individual to have a reasonable belief that the person entering or damaging the property is not authorized to do so. This provision provides a line of justification for individuals to use force to protect their property from theft or destruction. It allows them to take the necessary steps to prevent someone from damaging their property, or to recover stolen property when they have reason to believe that it is in the possession of the accused. The third and final condition is that the act committed must be reasonable and necessary given the circumstances. This aspect of the section requires individuals to exercise reasonable judgment in the use of force. It prevents individuals from using excessive force and violence to protect their property, as it provides a basis for examining the situation objectively. The courts can examine whether the force used was reasonable or not in the context of the situation. Overall, Section 35(1) of the Criminal Code of Canada has significant implications for property rights and public safety. It strikes a balance between the right of individuals to protect their property and the need to ensure that excessive force is not used. This approach ensures that people do not overreact when someone enters their property or attempts to steal it. Still, they also have a legitimate reason to take reasonable steps to protect their property or recover it in the event it is stolen. While it is difficult to measure the precise impact of Section 35(1), the provision offers comfort and security to homeowners and landowners. By providing a legal basis for self-defense, the section is likely to deter criminals from attempting to steal or damage other people's property. In addition, it may be seen as a signal that the Canadian government is taking the issue of property crime seriously and is willing to take measures to provide better protection to property owners. In conclusion, Section 35(1) of the Criminal Code of Canada is an essential provision that recognizes the right of individuals to protect their property through self-defense. It provides a balance between this right and the need to prevent the use of excessive force, which ensures public safety and the rule of law. By providing clarity and legal protection for individuals who use reasonable force, the provision is likely to strengthen the public's confidence in the Canadian legal system.

STRATEGY

Section 35(1) of the Canadian Criminal Code is a provision that allows a person to use reasonable force to protect their property from an intrusion, damage, or destruction. Essentially, it justifies a person's actions if they are acting to defend their property, and only use a degree of force that is reasonable in the circumstances. However, there are strategic considerations and risks that a person ought to consider before relying on this section to justify their actions. In the following discussion, I will outline some of the key considerations that arise under section 35(1), along with strategies that may be employed to mitigate risks or improve the chances of success. First, it is important to note that section 35(1) is not an automatic defense to a criminal charge. The burden is on the accused to prove, on a balance of probabilities, that the conditions set out in the section are met. This means that the accused must demonstrate that they sincerely believed on reasonable grounds that they were in peaceable possession of the property, or that they were authorized to act on behalf of someone who was. Additionally, they must have believed on reasonable grounds that the other person was about to commit an unlawful act against the property. Finally, the act committed by the accused must have been reasonable in the circumstances. It is crucial to note that if the accused fails to establish any one of these elements, the defense will fail. Therefore, in order to satisfy this standard and avoid a criminal conviction, it is important to carefully plan and document the actions taken. This can include several strategies. For example, people who frequently face property-related conflicts might want to establish a record of their ownership or occupancy of the property, such as by keeping receipts, documenting leases, or installing security cameras to record activity on the property. They may also consider informing neighbors or local authorities of their ownership or occupancy, which can serve as evidence of their peaceable possession. Secondly, it is important to note that the use of force in defense of property must be proportionate and reasonable in the circumstances. The Criminal code requires the accused to show that the force used was not excessive and that the accused did not intend to cause death or grievous bodily harm. In other words, people should use no more force than is reasonably necessary to protect their property. A failure to do so may result in a criminal charge being laid against them. Therefore, it is critical to have a clear sense of what "reasonable force" means in this context and to be able to articulate the reasons why a particular use of force was necessary in the specific circumstances. It can be helpful to seek legal advice in this regard, to review relevant Canadian case law, and to clearly document any steps taken to de-escalate the situation before force was used. People who encounter threats of violence on their property ought to avoid provoking the other person, notifying the police as soon as possible, and/or having a plan in place if dealing with tenants that are challenging to deal with. Finally, it is important to anticipate the various ways a prosecutor may try to undermine a claim under section 35(1). For example, a prosecutor could argue that the accused lacked reasonable grounds to believe that they were in peaceable possession of the property or that the other person was about to commit an unlawful act. Alternatively, the prosecutor may argue that the accused's use of force was not reasonable or necessary in the circumstances. A defense lawyer ought to be prepared to counter these arguments by presenting evidence, witness testimony, and arguments that demonstrate the accused's state of mind and conduct in the circumstances. In conclusion, section 35(1) of The Criminal Code of Canada carries the risk of criminal charges if not used judiciously. However, with careful planning, documentation, legal advice, and an understanding of the legal standards, people can effectively assert this defense if they feel the need to employ force in defense of their property. Those who are dealing with property-related conflicts should consider all of the potential strategic and legal considerations outlined in this discussion to avoid criminal charges and obtain a legally justifiable outcome.

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