R v Chaboyer, 2020 SKPC 6
[41] Defence of property has long been recognized as a limited defence in Canada. This defence is codified in s. 35 of the Criminal Code. The defence applies to a wide range of offences and to any type of property. The defence is triggered when a person subjectively believes that the actions of another person are threatening the peaceable possession of the subject’s property. See: Cormier v R, 2017 NBCA 10 at paras 37 & 47, 348 CCC (3d) 97 [Cormier].
[42] Section 35 provides that a person is not guilty of an offense (including in this case - assault) if four essential elements are present: (1) the person must have peaceable possession of property or alternatively they reasonably believe they are entitled to such possession; (2) the person must have a reasonable belief that their property is threatened by trespass, theft or vandalism; (3) the person’s actions must be for the purpose of retaking or preserving that property; (4) the person’s actions must be reasonable under the circumstances. See: Cormier at para 47. See also: Pankiw at para 34.
[43] For the trier of fact, the subject’s belief in their entitlement to peaceable possession in certain property and their perception of a threat to that property is assessed on a subjective basis (from the subject’s perspective). However, the reasonableness of the subject’s response to that threat is measured on an objective basis (what would a reasonable person have done under the circumstances). See: Cormier at para 47.
[44] Much like the defence of self-defence, “reasonableness” is the principle filter for the application of the defence of property to justify an action that would otherwise be an offence. Assuming the other elements are present, if the actions of the accused are objectively reasonable under the circumstances, they are justified at law and the subject is not guilty of the concomitant offense.
[45] Finally, Mr. Chaboyer need not prove the application of this defence. If I find there is an air of reality to the defence arising from the evidence, then s. 35 applies unless the Crown can prove beyond a reasonable doubt that at least one of the elements of the defence was not present. See: R v Caswell, 2013 SKPC 114 (CanLII), 421 Sask R 312.
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