In light of the fact that the criminal law already punishes property violations in disproportionate and discriminatory ways, it is questionable whether the law should also support the use of violence to assert property rights. Some form of defence of property that permits Aboriginal peoples to defend their lands must be retained, however.

1. Values to be Protected

The Justice consultation paper does not provide a sound basis or justification for the existence of the defence of property. It states that these provisions are intended to protect possessory, not ownership rights in property. It also notes that some judicial decisions have ruled that deadly force can never be used to defend mere property interests alone. However, beyond these mentions, the document does not provide a values-based justification for the defence of property.

CAEFS takes the position that it is only legitimate to use force to defend property when security or safety of the person or the survival of lands and peoples is thereby threatened. The criminal law should not legitimate the use of violence to protect economic interest in property. Otherwise we run the risk of promoting vigilantism. This sort of clear statement by the criminal law is in keeping with the case law on the defence of property mentioned by the Justice document, and is also required in order to bring police practices regarding the use of force into line with this case law.

CAEFS would support the use of this defence even in cases involving the use of deadly force, when human life or safety, or survival interests are at risk. As a society, we assert that we value life more than property and the Criminal Code defences ought to reflect this value. Justice should also follow through and review sentencing practices for all offences, in an effort to ensure that the maximum sentences and benchmarks used by judges also reflect this priority of life over property.

At the same time, CAEFS would support a specific set of rules or principles for Aboriginal peoples attempting to defend their lands. These disputes do not involve simple private "property" interests, because of the relationship between land, identity, and cultural survival for Aboriginal peoples. Defence of land in this context is actually defence of the territory of a people, protected by s. 35 of the constitution of Canada. It should be clear that this is not an individual right, but rather a community-based right.