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Trespassing on someone's property

Region: Ontario Answer # 985

The law of trespass in Canada is made up of tort law, provincial legislation, and criminal law.

Tort law

Trespass to land is one of the oldest torts known in law. Historically, it has been held to occur whenever there has been an unauthorized physical intrusion onto the private property of another. Trespass also occurs when a person remains on an individual’s land after permission has been withdrawn.

Trespass to land is actionable “per se”. That means that someone can be sued and found liable for trespassing even if there is no proof of damage. In a trespass case, if the incident was for particularly malicious purposes, such as to intimidate the land owner, even punitive damages may apply.

That said, however, any person can go onto the private property of another during daylight hours if permission to do so is implied. For example, if there is a path up to the front door of a residence and there are no signs warning people to stay off the land, there is implied permission for people to enter, such as a letter carrier. This implied permission can, of course, be revoked instantly by the person in charge of the property. If you are told to leave, you must leave or you could be sued for trespass.

Provincial regulation

Every province in Canada has trespass legislation, such as Ontario’s Trespass to Property Act. Only the territories rely on the common law. In some provinces, Privacy Acts, Motor Vehicle Acts, Fish and Wildlife Acts and even All Terrain Vehicle Acts may give a legal right to an owner to prosecute trespassers.

The purpose of any trespass legislation is to give greater control over entry or use of an owner’s or tenant’s premises, to provide penalties and remedies for breaches of the Act, and to facilitate the recreational use of private lands.

The law, in most cases, does not take away an owner’s or tenant’s right to sue for trespass, but usually grants the government the authority to seek its own sanctions as a way to control this sort of behaviour. A licensed private investigator can help with these types of investigations.

While trespassing is usually defined as the unlawful entry onto the private land of another, it also includes performing an unlawful activity on the land and refusing to leave when told to do so.

In some provinces, such as Ontario, there is a reverse onus provision. In Ontario, a person is presumed to be trespassing if he or she is found in a private garden, field or other land under cultivation, inside lands that are fenced for livestock or cultivation and on lands where notice has been posted. It is important to note that trespass is not presumed in privately owned natural areas if it is not posted as prohibited. This point is in line with the philosophy of encouraging recreational activity on privately held lands.

Offenders may be fined, in some cases up-to several thousand dollars. There are a number of defences available to a person charged under provincial trespass legislation. If there is a fair and reasonable supposition that an accused had a right to be on the land, the person may be acquitted. There is also an implied permission to approach a door of a building unless there is a notice warning people to stay away.

Criminal law

Entering onto private land at night is treated much differently, and implied permission does not extend to trespassing at night, which is a criminal offence. The Criminal Code makes it an offence to loiter or prowl at night on the property of another person near a dwelling-house situated on that property. “Night” is defined by the Criminal Code as between 9:00 p.m. and 6:00 am. “Dwelling-house” is defined by the Criminal Code as a permanent or temporary residence and anything attached to it.

The essence of loitering is wandering about apparently without a precise destination. It is conduct which essentially has nothing reprehensible about it as long as it does not take place on private property where the loiterer has no business. The substance of prowling is to move about stealthily, furtively, secretly, and clandestinely or move in small degrees.

The prosecutor does not have to prove that the accused was looking for an opportunity to carry out an unlawful purpose. Where prowling is proved, it is up to the accused to prove he had a lawful excuse for being there.

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