| Recommendation
#27: |
Amend the defence of property to make it available only
where the threat to property also poses a threat to human physical security or
safety. |
| Recommendation
#28: |
Review and revise other Criminal Code provisions,
including sentencing provisions, to ensure that they reflect the value of
protection of human safety and life over property. |
| Recommendation
#29: |
Create a specific rule for the use of force by
Aboriginal peoples in defence of land. |
2. Simplifying the
Law
Justice again asks the question whether it should put forward
simplified, general rules that would apply to all situations where defence of
property is invoked.
CAEFS takes the position that we should not create general rules
for defence of property to apply to all situations. Instead, the rules should
be crafted to respond to particular yet paradigmatic situations. In particular,
as stated above, a specific rule should be designed for situations where
Aboriginal people occupy land and/or resist entry when they are in a land
claims dispute. Generally, these situations involve Aboriginal peoples’
relationship with the state, and not a conflict between two individual property
rights.
In addition, if, contrary to the position taken by CAEFS, the
defence of property is maintained for protection of property alone, as opposed
to where human life or security is also threatened, then separate and stricter
rules should be developed for this form of defence.
| Recommendation
#30: |
Develop specific rules according to the values to be
protected through the defence of property. |
3. Types of Property
Defended
Justice asks in particular whether a defence of property ought
to differentiate based on whether it is real or personal property, and whether
it is a dwelling-house or other real property.
CAEFS does not believe that the defence ought to differ
depending on whether the person is defending his home or some other specific
form of "property" interest, whether real or personal. Instead, the
rule ought to depend on the nature and degree of threat to the person given
that such a person otherwise has the choice to avoid the confrontation by
retreating. Thus, the critical question should not be the type of property that
is entered or encroached upon, but rather whether someone is inside or is
likely to be inside, whose safety and security is threatened by the intrusion
or denial (eg breaking into a car at night on the street versus entering a tent
in a campground).
Furthermore, here CAEFS would insist on extending the defence to
encompass an enlarged definition of "property", so as to include
other economic interests such as social assistance or the preservation of an
ecosystem that yields subsistence.
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