section 35(2)

INTRODUCTION AND BRIEF DESCRIPTION

Section 35(2) specifies that the defense of property is not applicable when a person in peaceful possession of the property has no legal claim to it and the other person is entitled to possess it.

SECTION WORDING

35(2) Subsection (1) does not apply if the person who believes on reasonable grounds that they are, or who is believed on reasonable grounds to be, in peaceable possession of the property does not have a claim of right to it and the other person is entitled to its possession by law.

EXPLANATION

Section 35(2) of the Criminal Code of Canada is relevant to the defence of claim of right in theft cases. Section 35(1) of the Criminal Code of Canada provides that a person is not guilty of theft if they take the property in question believing, on reasonable grounds, that they are entitled to its possession. This defence is referred to as the "claim of right" defence. However, Section 35(2) provides an exception to the claim of right defence. It states that the defence does not apply if the person who is in possession of the property does not have a claim of right to it and the other person is entitled to its possession by law. This means that a person cannot claim a defence of claim of right if they do not have a valid claim of right to the property in question. For example, if a person takes their neighbors car without permission because they believe the neighbor owes them money, but the neighbor is still the rightful owner of the car, then the person cannot rely on the claim of right defence. In summary, Section 35(2) of the Criminal Code of Canada limits the scope of the claim of right defence by excluding situations where a person has no claim of right to the property in question and the true owner is entitled to its possession by law. It is important for anyone charged with theft to understand the intricacies of this section and to seek legal advice if they are unsure about their rights.

COMMENTARY

Section 35(2) of the Criminal Code of Canada is an important provision that outlines the circumstances under which a person can use force to defend their property. In particular, this provision applies to situations in which a person is in peaceable possession of property, but another person claims a right to possession of the property under the law. In such cases, a person cannot rely on Section 35(1), which allows for the use of force to defend property against a person who has no claim of right to it. The purpose of Section 35(2) is to prevent individuals from using force to defend property that they are not legally entitled to possess. This provision ensures that the law recognizes the rights of individuals who have lawful possession of property, while also recognizing the rights of others who may have a lawful claim to that property. For example, imagine a scenario in which a person owns a house but has rented it out to a tenant. The tenant fails to pay rent for several months, and the owner wants to evict the tenant. In this case, the owner may be in peaceable possession of the property, but the tenant still has a lawful claim to possession under the tenancy agreement. If the owner were to use force to remove the tenant, they would not be protected by Section 35(1) because the tenant has a claim of right to the property under the law. However, if the tenant were to use force to resist the eviction, they would not be protected by Section 35(1) either because they are not in peaceable possession of the property. One key aspect of Section 35(2) is the requirement that the belief in the claim of right to the property must be reasonable. This means that the person using force must have an honest and reasonable belief that they are entitled to the property under the law. If their belief is not reasonable, they may be charged with a criminal offense such as assault. Another important aspect of this provision is the requirement that the person in peaceable possession of the property does not have a claim of right to it. This means that the individual can only use force to defend property that they do not have a legal claim to. If they have a legal claim to the property, they must go through the proper legal channels to enforce their rights, rather than resorting to the use of force. Overall, Section 35(2) of the Criminal Code of Canada is an important provision that outlines the circumstances under which a person can use force to defend property. It ensures that the law recognizes the rights of both those who have lawful possession of property and those who have a lawful claim to that property. By requiring a reasonable belief in the claim of right and limiting the use of force to cases where there is no legal claim to the property, this provision helps to prevent unnecessary violence and ensure that disputes over property are resolved through lawful means.

STRATEGY

Section 35(2) of the Criminal Code of Canada provides an important defense for individuals who have been accused of theft, robbery, or other property-related offenses. This section provides that an individual cannot be charged with an offense if they had a reasonable belief that they were in peaceable possession of the property, even if they did not have a claim of right to it. When dealing with this section of the Criminal Code of Canada, there are several strategic considerations to keep in mind. One of the key considerations is the burden of proof. In order to successfully use this defense, the accused must be able to prove that they had a reasonable belief that they were in possession of the property, and that this belief was based on objective facts. This can be a challenging burden, as the court will consider a wide range of factors when evaluating whether the accused had a reasonable belief. To improve the chances of successfully using this defense, there are several strategies that can be employed. One important strategy is to gather as much evidence as possible to support the accused's claim of peaceable possession. This may include witness statements, photographs or videos of the property, and any documentation that shows how the accused came into possession of the property. The more evidence that is available, the stronger the accused's case will be. Another important strategy is to work with a skilled criminal defense lawyer who has experience with property-related offenses. A knowledgeable lawyer can help the accused to build a strong case, identify weaknesses in the prosecution's case, and ensure that all relevant evidence is presented to the court. Finally, it is important to be transparent and open with the court throughout the legal process. Accused individuals who are upfront about their situation and cooperate fully with the court are more likely to be viewed favorably and receive a more favorable outcome. In conclusion, Section 35(2) of the Criminal Code of Canada provides an important defense for individuals who have been accused of property-related offenses. To successfully use this defense, accused individuals must be able to provide evidence of their peaceable possession of the property and work closely with an experienced criminal defense lawyer. By following these strategies, individuals can improve their chances of successfully defending themselves against property-related offenses.