Halt! Who Goes There?

Alyce Gorter

[This article ran in the April/May 2014 issue of The SCOOP.]

My grandmother was a lady. Despite her lifetime of living in impoverished conditions and surviving through bone-wearying daily toil, she did not smoke, drink, swear, or carouse. She looked, smelled, and conducted herself like the lady she was at heart. Yet, when she discovered another woman trespassing on her property and robbing her precious blueberry patch, her ‘fighting Irish’ heritage surfaced, leading to a physical altercation and a day in court.

This was not an incident that merited boasting in my family. However, it does demonstrate the intensity of emotion that can occur when rights of ownership are violated by another. The phrase “shoot and shovel” was coined to describe the means of resolution that some irate landowners took in the past to eliminate trespassing on their property. Yet, despite putting themselves and their reputations at risk, trespassers continue to be one of the most frequent sources of complaints by property owners. With good reason.

Take, for example, two reports from the Ministry of Natural Resources of local trespassing charges laid during the 2013 deer hunt season. One incident involved a man from Godfrey and a man from Kingston shooting from the road an antlerless deer in North Frontenac Township that was standing by a NO TRESPASSING sign! There are so many things wrong with this picture that it defies anyone’s logic. The second incident involved a man from Battersea and a man from Bath going directly past a NO TRESPASSING sign in Central Frontenac to destroy parts of a beaver dam in plain view of the landowner’s house! There was no benefit to any of these men from their actions.

So perhaps at this time a bit of clarification regarding ‘trespassing’ is warranted. This is information only and not to be taken as legal advice.

The Trespass to Property Act, passed in 1980, is meant to protect landowners and occupants from other people being on their property. That means almost any piece of property, including trailers, trains, water, ships, residences (dwellings and gardens) and businesses. (Although, if there is a door located on a property, it is presumed that access to that door is not prohibited as long as you are using it for legal reasons and that the door is for the purpose of entering and leaving.) So, aside from those using your front door, let’s simplify it: A trespasser is anyone who does not have permission from the owner or occupant to be on the premises.

In Ontario, a sign does not have to be posted in order for you to be considered in violation of the Trespass to Property Act. If you do not have implied or explicit permission to be on any given premises, then you are in violation of this act and can be arrested by a law enforcement officer, occupant or person authorized by the occupant. If you are found guilty in a court of law of violating Ontario's Trespass to Property Act, fines of up to $2000 can be assessed against you. Damages can be awarded to the occupant for up to $1000. The trespasser may also have to pay the court fees.

As an interesting note -- if you are detained by the property owner, the property owner MUST turn you over to a police officer. The reason? Through the Trespass to Property Act, the property owner has a civilian arrest authority but no civilian release authority. And no, the property owner can’t keep the trespasser under permanent detention, such as chained up in the barn. But, if you are detained by the property owner or someone acting on their behalf and you attempt to forcefully leave, you are “resisting arrest.” This could upgrade what is a Provincial Offence to a Criminal Offence. Nor can the arresting person “change their mind” or “give you a break”. Nor can your supervisor, or any other civilian authority release them or order you to release them. Once arrested, you must be turned over to the police. Period! Anything else could result in the person arresting you, being charged or sued.

There is a six-month limitation on Provincial Offences beginning from the date that the offence occurred. So, the trespasser who cut that cute little pine tree down December 18 and thought they got away with it, might still be charged right up until June 17. Trespassers, beware of field cameras! And it is possible that by appearing before a Justice of the Peace, the prosecutor could obtain an extension of time.

So, if you don’t own the land, and don’t have the right of occupancy or have the permission of the landowner to be there, “you” are a trespasser and may be prosecuted.