Canadian Criminal Law/Defences/Defence of Property

Defence of Personal Property
Under s. 39, the owner and persons acting for the owner of personal property may defend the possession of that property as long as there is "no more force than is necessary". In determining if there was "no more force than is necessary" requires the judge to consider all the circumstances such as the accused's state of mind and belief that force was necessary. Factors to consider include:
 * 1) nature of the property
 * 2) the value (financial and sentimental) of the property
 * 3) risk of harm to the property
 * 4) alternative options to accused

Trespassing and Unlawful entry
The defence of house or real property is available where:
 * 1) Where a homeowner has reasonable grounds to believe that the victim was a trespasser
 * 2) the trespasser had reasonable opportunity to withdraw after they ought to have realized they were trespassing,
 * 3) the trespasser did not withdraw
 * 4) the threat of force or actual force must not be more than was reasonable under the circumstances
 * 5) the threat of force or actual force was no more than what the accused reasonably believed was necessary to remove the trespasser

A trespasser can include the police who are not lawfully in the dwelling house.

A dwelling house includes hallways and stairwells, as well as stores.

There is no obligation to retreat when defending a dwelling house.

Any force used that was above and beyond force necessary to defend property is criminally liable.

See also: