4. Nature of Interference With Property

The Justice document asks whether a new law should expand to permit the use of force to defend against broader forms of interference with property, beyond physical trespass and removal of property.

In considering whether one should be able to use force to protect against a broad range of interference or simply trespass and removal, CAEFS would again emphasize that the protection of personal safety and security represents the paramount criterion. We should therefore limit the defence to situations where the actions of the "trespasser" constituted a threat to the security of others. Consistent with an expanded definition of property protected by this defence, actions that do not amount to trespass or physical removal could justify the use of force to protect, for example, entitlement to welfare or public housing.

5. Priority for Possession or Claim of Right

The Justice document proposes to continue to accord priority in terms of defence of property to those who assert a legal claim or right to property. In situations where both parties or neither party claims a legal entitlement, the consultation document proposes to give the right of defence to the person exercising “peaceable possession”, which is defined by the document as “possession in circumstances that are unlikely to lead to violence” (Department of Justice, 1998 at 43).

CAEFS would abandon the "peaceable possession" rule as the criterion by which one’s right to use force to defend property is engaged. In some Aboriginal land claims disputes, an effort may be made to defend lands under dispute by attempting to take possession of those lands or to resist police efforts to remove them using violence. In light of the specific constitutional relationship that exists between Aboriginal peoples and the Canadian state, the history of colonization and the use of the criminal law in Canada to dispossess Aboriginal peoples of their lands, it would be manifestly unjust to now require actual or peaceable possession as a precondition to defence of land. There may also be instances where women need to defend their "property" interests, but would, by this limitation, be precluded from doing so if they had not managed to first assert "possession".