Documentation:Torts/Defence of property
Defence of property
The defence of property affords justification for an occupier of land to take harmful actions against another to protect their property.
Common law defence of property
Similar to how one may use force to defend one's person, the common law permits force to be used to defend one's property. However, at common law the threshold of acceptable force when defending property is lower than that of self-defence. This is because the law gives higher regard to bodily integrity compared to property interests. While lethal force may be acceptable in certain situations where one is attempting to defend themselves, such force is not acceptable when merely attempting to protect property.[1]
In the English case of Bird v. Holbrook, the defendant had set up an unattended spring gun in his garden due to previous incidents of robbery.[2] The defendant had not posted any notice on his property regarding the presence of this booby trap or the danger it posed. The plaintiff, who was chasing after a young girl's escaped hen, entered the defendant's property while in pursuit, stepped on the trap and suffered a severe wound as a result.[2]
In Bird v. Holbrook, Chief Justice Best placed particular emphasis on the "inhumanity" of the traps which were set up by the defendant.[2] Best noted that the presence of such a dangerous trap without any notice served the "express purpose of doing injury" rather than deterring potential burglars.[2] The court also noted that the defendant's conduct would have still been prohibited even if the defendant had been present in the garden at the time of the trespass, rather than merely setting up an unattended trap.[2] As Justice Burrough noted, "no man can do indirectly that which he is forbidden to do directly".[2] As the defendant's conduct was overall unjustified and excessive, the court granted damages to the plaintiff for the injuries he suffered from the spring gun.[2]
Expulsion of trespassers
The amount of force which should be used when expelling trespassers from property should be minimal. Prior to any attempts to use physical force, the owner of the property or someone acting on their behalf must first ask the alleged trespasser to leave the property. Only if and when the trespasser refuses to do so, can they be "expelled with the minimum of force necessary".[3]
The Castle Doctrine in common law
The Castle Doctrine originates from Lord Coke's comments in 1604:[4]
“The house of every one [sic] is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose.”[4]
At common law, the doctrine protects those who use force against intruders rather than those retreating from a threat. However, Lord Coke's comments and the doctrine do not elaborate on the degree of what force would be deemed acceptable in such situations. For example, in the United States there is debate about how "stand-your-ground" laws should be implemented and interpreted.[5] Many states in the US have such laws, based upon the Castle Doctrine. Such laws allows for lethal force to be used in self-defence, without a "duty to retreat from a potentially violent situation".[6]
While no jurisdiction expressly permits killing another person for trespassing on property, some interpretations of the Castle Doctrine give credence to a moral justification in using force to defend one's property. Stand your ground laws are criticized as being rooted in the "racist and misogynist foundations of the White supremacist, settler colonial state."[5] Opponents refer to these laws as “shoot first” laws, believing that using lethal force should only be a last resort.[6] However, supporters of such laws argue that in rural areas immediate police assistance is often not available when there are threats against property and people.[7]
Defence of property in the Criminal Code
Outside of the realm of tort law, section 35 of the Criminal Code of Canada states that a person is not guilty of an offence committed while preventing another person from entering a property, or removing that person from the property, as long as the act is "reasonable in the circumstances".[8]
| Defence of property in the Criminal Code of Canada |
|---|
| Criminal Code, RSC 1985, c C-46 s 35.[8] |
35 (1) A person is not guilty of an offence if
No defence (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. No defence (3) Subsection (1) does not apply if the other person is doing something that they are required or authorized by law to do in the administration or enforcement of the law, unless the person who commits the act that constitutes the offence believes on reasonable grounds that the other person is acting unlawfully. |
Quiz
References
- ↑ Goudkamp, James (2013). Tort Law Defences. Hart Publishing. p. 108.
- ↑ 2.0 2.1 2.2 2.3 2.4 2.5 2.6 Bird v. Holbrook, (1825) 130 ER 911 (CP) (§7.2.1).
- ↑ Chaytor v. London, New York and Paris Association of Fashion Ltd, 1961 CanLII 404 (NL SC).
- ↑ 4.0 4.1 Flynn, Alexandra; Van Wagner, Estair (2020). "A Colonial Castle: Defence of Property in R v Stanley". Canadian Bar Foundation. 98: 364 – via CanLII.
- ↑ 5.0 5.1 Flynn, Alexandra; Van Wagner, Estair (2020). "A Colonial Castle: Defence of Property in R v Stanley". Canadian Bar Foundation. 98: 365 – via CanLII.
- ↑ 6.0 6.1 Metych, Michele (2 Feb 2023). "Stand-your-ground laws". Encyclopedia Britannica.
- ↑ Flynn, Alexandra; Van Wagner, Estair (2020). "A Colonial Castle: Defence of Property in R v Stanley". Canadian Bar Foundation. 98: 370–371 – via CanLII.
- ↑ 8.0 8.1 Criminal Code, RSC, 1985, c. C-46, s 35.