Claim of Right

[agapooka]

Jack wants this law in the US. Maybe it exists there, too.

Anyway, here's a fun quote from the Criminal Code of Canada, section 39.

Defence with claim of right

39. (1) Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary.

Defence without claim of right

(2) Every one who is in peaceable possession of personal property, but does not claim it as of right or does not act under the authority of a person who claims it as of right, is not justified or protected from criminal responsibility for defending his possession against a person who is entitled by law to possession of it.

R.S., c. C-34, s. 39.

And section 42, subsection 3:

Trespasser provoking assault

(3) Where a person

(a) having peaceable possession of a dwelling-house or real property under a claim of right, or

(b) acting under the authority of a person who has peaceable possession of a dwelling-house or real property under a claim of right,

assaults any person who is lawfully entitled to possession of it and who is entering it peaceably by day to take possession of it, for the purpose of preventing him from entering, the assault shall be deemed to be provoked by the person who is entering.

R.S., c. C-34, s. 42.

Basically, this means that being in possession of a property or dwelling-house under a claim of right protects you from being prosecuted by law if you assault a police officer who has a court order to seize that property and enters your property, attempting to act upon that order. The thing is, they make it quite clear that you cannot do this without a claim of right. Furthermore, the term "peaceably" essentially means "without causing any harm to others".

Cheers,

Agapooka

NB: All of these quotes are from http://laws.justice.gc.ca/, the official website of Canada's Justice Department. They have stated on their website, that, as of June 1, 2009, the online versions of the acts are official and can be used for evidentiary purposes.

NB2: This is not legal advice.

[agapooka]

Don't you start singing the Hannah Montana theme song on me!!!

[spoiler]CHORUS
You get the best of both worlds
Chill it out, take it slow
Then you rock out the show
You get the best of both worlds
Mix it all together
And you know that it's the best of both worlds

The best of both worlds[/spoiler]

And castle doctrine doesn't deal with cops trying to seize your property.

[agapooka]

A claim of right is just a document where a right is claimed. You can essentially claim any right and as long as all affected parties are notified and given an opportunity to cure and accept your right, implicitly or tacitly, then, in the latter case, you must issue an Affidavit of Non-Response, essentially curing your right.

You can also claim the right to seize the property and/or charge fees to anyone interfering with those rights.

[Juliette]

That's what they did in.. what's it called.. Nunavut? Or something, 'part of' the Northern Territories?

[agapooka]

I only know that Nunavut separated from the Northwest Territories and became a distinct territory, but it's still part of Canada. One reason that they gave is that it consisted mostly of the same aborigine culture and was being given recognition, or something like that. I don't know if a claim of right was involved in the process.

Agapooka

[Spacey]

edited out.

I'm not looking for an argument, although it seems as I am creating one.

I still have my post, in case it becomes an issue about me hiding things.

I'm getting to old for friction on this forum.

Forget I was here.

Fare thee well.

[agapooka]

Spacey, you should read the words instead of giving me some subjective interpretation. I'll make it clearer for you with bold and underlining. Essentially, "Trespasser provoking assault" is the title for this subsection, essentially defining the entering upon a property as described within it as "trespassing".

Trespasser provoking assault

(3) Where a person

(a) having peaceable possession of a dwelling-house or real property under a claim of right, or

(b) acting under the authority of a person who has peaceable possession of a dwelling-house or real property under a claim of right,

assaults any person who is lawfully entitled to possession of it and who is entering it peaceably by day to take possession of it, for the purpose of preventing him from entering, the assault shall be deemed to be provoked by the person who is entering.

R.S., c. C-34, s. 42.

"ANY PERSON". That includes cops.

Of course, one must consider the two statuses that cops have. They can act as peace officers, but only to enforce public peace. Technically, they cannot even lawfully enter your property to take possession of it if they are acting as peace officers and you are in peaceable possession of your property, even without a claim of right.

Without a claim of right, however, they can lawfully enter to enforce government policy, which differs in that something that may be against government policy may not break the peace. If they are enforcing government policy and not public peace, they cannot lawfully claim to be peace officers, although this technicality is often ignored.

A court order could indeed grant a policy enforcement officer the mandate to take possession of property; however, this section of the criminal code makes it clear that if the property is held peaceably under a claim of right, it can be defended against anyone lawfully entitled to possession of it. The only condition beyond the claim of right itself is that it must be in peaceable possession, so a peace officer acting lawfully within his mandate as a peace officer and with the lawful entitlement to possess the property could not be stopped, as to act lawfully upon that mandate to possess, as a peace officer, would imply that the property was not held under peaceable possession.

Do you understand, now? Otherwise, the so-called "peace officer" is acting unlawfully and will be seen as having provoked the assault.

Agapooka

[Brdavs]

I wanted to comment before and bit my tounge cos I come from a different school of legal thinking but here goes the 95% watered down version...

These norms seem very familliar to me and at a glance I`d say they`re about preventing violence and framing selfhelp in civil disputes...
In no way in heck would I say off the bat you can stretch the wording to include "cops". There are seperate bodies of legislature governing their right to enter your premisses and the like.

Basically, based on my experience with simmilar norms, you`re talking about relations in cases of say... lessor/lesse - where one party has say ownership but the other what can be interpreted as a claim of right (lease) on say a flat...

I`d very VERY much want to get my hands on a court rouling (or something in those lines) explicitly stating this can be applied to officers of state before I`d act against some official heh. Cos from the get go, it does not make much sense to me.
But hey, (especially commonlaw from continental perspective) legislature produced stranger things in the past, so who am I to say "you`re definatly wrong".

[agapooka]

Well, if they wished to exclude cops from the term "any person who is lawfully entitled to possession of it", they should have written something along the lines of:

"(3) Where a person,

(a) having peaceable and legal possession of a dwelling-house or real property under a claim of right, or

(b) acting under the authority of a person who has peaceable and legal possession of a dwelling-house or real property under a claim of right,"

OR

"[...] any person who is lawfully entitled to possession of it, except a police officer with an endorsed search warrant[...]"

Otherwise, it can be interpreted that a police officer has no authority to seize the property unless he's a observed a breach of the peace, regardless of whether or not he has an endorsed search warrant, as there cannot be two conflicting parties with the right to defend property with force.


Agapooka

[Brdavs]

Generally, norms are not structured so that they would exhaustively list things - becuase that makes them rigid and prone to becoming obsolete (too) fast - so they are abstract.
As such "general" concepts, like definitions and exclusions, are covered in the first, "general" part of an act and applay to all the subsequent articles, so you really cant just focuse on that one norm but have to look at the whole thing.

I took a quick glance at the Canadian Criminal Code to find article/section 25:

Protection of Persons Administering and Enforcing the Law

Protection of persons acting under authority

25. (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law

(a) as a private person,

(b) as a peace officer or public officer,

(c) in aid of a peace officer or public officer, or

(d) by virtue of his office,

is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Idem

(2) Where a person is required or authorized by law to execute a process or to carry out a sentence, that person or any person who assists him is, if that person acts in good faith, justified in executing the process or in carrying out the sentence notwithstanding that the process or sentence is defective or that it was issued or imposed without jurisdiction or in excess of jurisdiction.

So my legal counsel would be... "Don`t do it pookie!" heh... You have chanells to "fight", but this is not one of the legal ones...

[Juliette]

That is basically a carte blanche.
Interesting.

[Brdavs]

It`s far from a complete carthe blanche, there is seperate legislature governing any and all actions that can be taken, and even in these 2 sections it is made clear that an officer must act in good faith and use proportionate measures. And there are othersubsections refering to further limitations and exlusions from this protection.

So worry not folks, just because it`s not completley evident from one article you don`t have to start panicking about too much power being vested into authorities... A legal system is basically just one big muzzle for the soveirn and if you live in a western country you`re very well taken care off - even without being able to resist police heh... Theres plenty of failsafes and safeguards to go around, you just have to look for them and not your baretta/bat heh.

If a mistake gets made and say their entry is unlawfull, you`ll be duly compensated, but a state cant very well have its citizens duking it out with its officers lawfully & on the spot, can it.

After all, the state is the monopoly of force, it`s one of its foundations. Law enforcment cannot legally be challenged "on the ground" on whatever basis, only in courts, thats why they`re there. Anything else would go against the very essence of a state as we know it.

[agapooka]

[...]if he acts on reasonable grounds, justified in doing what he is required or authorized to do[...]

But section 39 implies that he wouldn't be justified if the property were held peaceably under a claim of right, although he'd certainly be authorized. I'd interpret a police officer armed with an endorsed search warrant and attempting to seize property that is peaceably held under a claim of right as "unjustified in doing what he is required or authorized to do". Without an endorsed search warrant, he would be both unjustified and unauthorized.

See what I'm saying?

And I'm not saying that I'd assault a police officer. I'm only looking at the words and I want to establish whether or not an individual in that situation would be justified in doing so. To some extent, you're right, insofar that I should read the whole document, even though it's ridiculously long. I was looking through it with a search engine.

@Spacey: this is the debate section. It's MEANT for argument. I didn't mean to offend you by arguing, but that's kinda the point of this section.

Cheers,

Agapooka

[Brdavs]

You raise an interesting point heh...

Without diving deeper into your legislature and sorta giving (somewhat educated) guesses I`d still say that if we`re talking about genuine officers claiming that they`re on genuine (theoretically possible) mandate, one is pritty much tied up. And theres a reason why impersonating an officer is seen as one of the more serious crimes, the mere "aura of authority", be it "legit" or not has consequences by its nature heh.

So basically it would seem that in the short term you`re getting shafted citizen. If the officer acted without authorization and/or justification he basically abused his power and the case against you will fall + he`ll face severe consequences himself. But they`d (imo) still slap you for going against the presumption of untouchable authority heh...


In many legal situations you`ll find that law is set up in a manner to stabilize/pacify the situation (even if it is sometimes blatantly obvious who is in the right or wrong) and leave the resolution to the courts. Both in civil disputes and all the more so in dealings with the authority.

You can deny officers entry to your premisses without a warrant but if they claim one of the (regulated) other legal foundations for entry they can and you`ll be obliged to stand aside. If they don`t even do that they`re really royally fracking the procedure up and you`ll be off O.J. style, but resist you cannot. It`s not up to an induvidual to establish the validity of authorization and justification on scene but up to the courts.

This is just one of those cases where its preferable to have a injustice here and there that is remmedied retrospectively, as opposed to enabling self help etc. and opening a pandoras box of complications in general.


It sounds bad but it really isn`t, a system of checks and balances is there protecting citizens from "heavyhanded" authorities, it just in term takes away the "wild west" component heh...

[agapooka]

Yet we're forgetting the pivotal element of this entire argument: the claim of right. Under section 39, it's also made quite clear that in the exact same scenario, but without a claim of right, one cannot use force to defend property from one who is lawfully entitled to possession of it. So what is a claim of right and why does it empower one to use force against someone lawfully entitled to possession of property held under it?

It seems to me that a claim of right can give immunity against statutory law insofar as a breach of the peace has not been observed and that, unless a breach of the peace has been observed (quote: "having peaceable possession"), a police officer would not be justified in acting and would thus be stripped of his entitlement to using force under section 25, and under section 42, subsection 3, would be seen as having provoked any assault on his person by entering the property with the intent to take possession of it.

Section 39 goes as far as stating that the individual, having peaceable possession of property under a claim of right, or any individual acting under the authority of one who has peaceable possession of property under a claim of right "is protected from criminal responsibility for defending that possession". The only condition is that the amount of force used must be justified under this section (although section 42 states that, in the same situation, entering the property to take possession of it would provoke assault).

All of these things cannot be done without a claim of right. So what is a claim of right? Why does it give such immense power? Is it a peaceful remedy that allows one to separate themselves from the governance of the state? It certainly seems that one can live peaceably without filing taxes, so would it protect one from the Income Tax Act being enforced through property seizure?

First of all, it is claimed that we have a representative government in Canada. Can one be represented if they do not consent to being represented? What if you deem your representative incompetent to represent you? Furthermore, if we are a "free and just society" and that statutes apply to that "free and just society", it should be noted that being a part of a society requires mutual consent. Does the claim of right allow for one to revoke that consent, effectively separating themselves from the state?

I ask these questions because of what sections 39 and 42 seem to imply; however, nowhere is a "claim of right" defined beyond what is mentioned in those sections. Maybe I'll serve the parliament and the Supreme Court of Canada a notice to define it, because I'm pretty damn curious.

Agapooka