The Criminal Code justifies the use of force in defending your home or other real property. It provides that “every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.” The defence of property is a justificatory defence, meaning that the justification renders lawful what would otherwise have been a criminal act. By its very nature, the defence of property involves a physical confrontation. Most cases where it comes into play are determined by the reasonableness of the force used by the accused to defend the home.
The Supreme Court of Canada has identified four elements to the defence: (1) the accused must have been in possession of a “dwelling-house”; (2) the accused’s possession must have been peaceable; (3) the person being removed must have been a trespasser; and (4) the force used to eject the trespasser must have been reasonable in all the circumstances. The term “dwelling-house” means not only your permanent home but includes a temporary residence. A trailer or mobile home may be a dwelling-house. “Peaceable possession” means that the accused had some element of control over the dwelling-house or that the possession of it was not seriously challenged by others. A welcomed guest to a home may become a trespasser. Such a situation could arise in the course of an evening visit when a disagreement arises over politics or family matters and tempers are running high. The guest is asked to leave several times but refuses to do so and, thus, becomes a trespasser. Even in a shopping centre, a visitor may become a trespasser. A court has held that a person who enters a shopping centre as an “invitee” becomes a trespasser when that person starts skateboarding in the shopping centre where there are posted signs prohibiting skateboarding.
How much force to use to evict the trespasser, namely the reasonableness of the force, is the contentious element in this defence and the Canadian jurisprudence is unsettled in regard to the test to apply. The issue is whether the test is an objective test or a test which should take into account what force the accused believed was necessary on reasonable grounds. In its most convoluted form, one judge has stated that the test is to determine whether the accused reacted in a reasonable manner given his or her objectively verified subjective belief that the force was necessary.