Instead, a person should be able to defend where human life or security or the land itself is at risk and the person claims "colour of right" in the "property" at issue. "Colour of right" should be understood as an honest belief that one has a legitimate claim in law to an interest in the "property" as part of an assertion of s. 15 Charter and s. 35 constitutional rights.

6. Judging the Circumstances

Justice’s consultation document asks whether the defence of property should be reformed such that the defence could be successfully invoked where an accused claims only a subjective belief that someone was unlawfully interfering with his property rights, whether or not that belief was reasonable. Alternatively, it proposes to retain a mixed subjective-objective test for judging the circumstances in which the need to defend property arose, much like the test proposed for self-defence.

CAEFS is of the view that the standard that ought to be used for the accused’s assessment of the need to use violence in protection of property should mirror the standard used for self-defence given that CAEFS is arguing that this defence should only be available where the threat to property also poses a threat to security of the person. The mixed subjective-objective test proposed by Judge Ratushny, which asks whether the accused actually and reasonably believed that there was a need to use force and actually and reasonably believed that the degree of force used was necessary, should be adopted for defence of property. This test should be interpreted in a manner that is consistent with Charter values, including equality rights.

If, however, Justice retains the defence of property for circumstances where there is no threat to personal safety, then the criteria should be much more stringent. Such a defence should be tested on a purely objective basis in terms of the degree and nature of the risk and the needed force. In such circumstances, CAEFS would also support an additional criterion that the force used be proportionate, as suggested in the consultation document.

7. Judging the Degree of Force

The consultation document prepared by Justice notes that the current law requires that the use of force be “necessary”. It asks whether it should reform the law by also requiring that it be “reasonable” and “proportionate”, much as was proposed with respect to the law of self-defence.

CAEFS believes that it would be appropriate to adopt the same test for defence of property as was recommended for self-defence, which is simply to require that the force used be reasonable, in all of the circumstances. This position is based upon the narrowing of the defence of property to confine it to situations where life or lands are at risk. It may become necessary, in the future, to expand upon the reasonableness test for defence of property through a list of factors to consider, as has been proposed for self-defence.