Criminal Code of Canada - section 72(2) - Definition of forcible detainer

section 72(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section defines forcible detainer as the act of detaining real property without legal right, in a manner likely to cause a breach of peace, against someone entitled to possession of it.

SECTION WORDING

72(2) A person commits forcible detainer when, being in actual possession of real property without colour of right, he detains it in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against a person who is entitled by law to possession of it.

EXPLANATION

Section 72(2) of the Criminal Code of Canada deals with the crime of forcible detainer. It states that a person commits forcible detainer when they are in actual possession of real property without a legal right to be there and detain it in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace, against someone who is entitled by law to possess that property. In essence, this means that if someone is holding real property, such as a house or land, and they have no legal right to it, they can be charged with forcible detainer if they refuse to vacate the premises and act in a manner that could lead to violence or threaten violence against the rightful owner. Forcible detainer is a serious offence, as it is a violation of an individual's property rights under the law. Additionally, the use of force or threat of force to maintain possession of the property can lead to a breach of the peace and endanger the safety and security of those involved. Therefore, it is important for individuals to always act lawfully and obtain the proper permissions and legal documentation before occupying or claiming ownership of any real property. Those who knowingly commit forcible detainer could face imprisonment or fines under the Criminal Code of Canada.

COMMENTARY

Section 72(2) of the Criminal Code of Canada makes it a criminal offence to commit forcible detainer. Forcible detainer refers to the act of detaining or holding real property without any legal right and in a manner that is likely to cause a breach of peace or reasonable apprehension of it. The law recognizes that certain individuals are entitled by law to possession of the property, and therefore, any act that interferes with their rights is a criminal offence. The section is intended to protect property rights and prevent individuals from taking the law into their own hands. The law recognizes that possession is nine-tenths of the law, and therefore, whoever is in possession of a property has certain rights over it. However, this right is not absolute and is subject to certain conditions, such as the legal right to possess the property. The term 'without colour of right' is used to describe the act of detaining property when there is no legal basis for doing so. For example, if an individual occupies a property that is not theirs and refuses to leave, they are committing a forcible detainer. The section recognizes that only certain individuals have the right to occupy or possess a property, and any act that interferes with this right is criminal. The section also requires that the act of forcible detainer must be committed in a manner that is likely to cause a breach of the peace. The law recognizes that disputes over property can be highly emotional and volatile, and therefore, any act that can lead to violence or physical harm is criminal. This requirement ensures that individuals resolve property disputes in a peaceful and lawful manner. Moreover, the section recognizes the principle of natural justice, that no one should be dispossessed of their property without a lawful hearing. Consequently, the section is intended to prevent property owners from occupying their property through force, and instead, such disputes should be resolved through legal channels. The offence of forcible detainer can have severe consequences. A person convicted of this offence can face imprisonment for up to two years. Additionally, the courts can also order restitution to the rightful owner of the property or compensation for any harm caused. In conclusion, Section 72(2) of the Criminal Code of Canada is an essential provision that seeks to protect property rights and prevent individuals from taking the law into their own hands. It recognizes the importance of legal possession of property and the principles of natural justice. Therefore, it is imperative that individuals resolve any disputes over property through the right legal channels and not through physical force and violence.

STRATEGY

When dealing with section 72(2) of the Criminal Code of Canada, there are several strategic considerations that need to be taken into account. Forcible detainer is a serious criminal offense that can result in significant penalties, including fines and imprisonment. Therefore, it is crucial to take a strategic approach to dealing with this offense to avoid any unnecessary legal ramifications. In this article, we will discuss some of the key strategies that can be employed when dealing with section 72(2) of the Criminal Code of Canada. First and foremost, it is important to have a thorough understanding of the law surrounding forcible detainer. As stated in section 72(2) of the Criminal Code of Canada, a person commits forcible detainer when they are in actual possession of real property without color of right and detain it in a manner that is likely to cause a breach of the peace or reasonable apprehension of a breach of the peace against a person who is entitled by law to possession of it. Additionally, it is important to understand that color of right is a legal term that refers to a bona fide claim of right or title to the property in question. Therefore, if a person is in possession of real property with a color of right, they cannot be charged with forcible detainer under this section of the Criminal Code. Another important strategy when dealing with section 72(2) of the Criminal Code of Canada is to work with an experienced criminal defense lawyer. A criminal defense lawyer can help you to navigate the complexities of the law and develop a strong defense strategy that can help you to avoid conviction or reduce the severity of the penalties that you may face. A lawyer can also help you to assess the strength of the evidence against you and develop a sound plan of action based on your unique circumstances. In addition to working with a criminal defense lawyer, there are several other strategies that can be employed when dealing with section 72(2) of the Criminal Code of Canada. For example, if you are facing charges for forcible detainer, it may be possible to negotiate a plea bargain with the prosecution. A plea bargain involves admitting guilt to a lesser charge or accepting a reduced sentence in exchange for avoiding a trial. This strategy can be particularly useful if the evidence against you is strong and a conviction is likely. Another strategy that can be employed when facing charges for forcible detainer is to challenge the evidence against you. For example, if the prosecution's case relies on eyewitness testimony, it may be possible to challenge the reliability of that testimony. Similarly, if the prosecution's case relies on physical evidence, it may be possible to challenge the chain of custody of that evidence. By challenging the prosecution's case, you may be able to weaken their case and increase the likelihood of a favorable outcome. In conclusion, section 72(2) of the Criminal Code of Canada is a serious criminal offense that requires careful consideration and strategic planning. By working with an experienced criminal defense lawyer and employing various legal strategies, you can increase your chances of avoiding conviction or reducing the severity of the penalties that you may face. If you are facing charges for forcible detainer, it is important to seek legal advice as soon as possible to ensure that you have the best possible defense.