9.4-Trespass to Property Act

Trespassing may be a concern at any employment site. The Guard is responsible for ensuring that no one is allowed on the site unless they are approved. This includes those who have previously been instructed not to return to the property, people who have been arrested for crimes committed on the site, and people who have been fired from a firm and asked by management not to return to the property. The Trespass to Property Act spells forth exactly what constitutes trespassing, who has the ability to bar someone from a property, and who has the authority to arrest someone for trespassing.

Trespassing should be handled in the same way as any other scenario on the job site. The Guard should treat the individual with professionalism and kindness. If an arrest is required, the relevant arrest procedures should be followed; nevertheless, it is normally preferable to let the suspect to leave the premises rather than going through the costly process of apprehending someone for a minor Provincial Statute Offence.

Trespass an Offence

2 (1) Any person who is not operating with a legal right or authority and who,

  • without the explicit authority of the occupant, which the defendant must prove,
    • I enters premises when access is forbidden by this Act, or
    • (ii) participates in an activity on the premises that is prohibited by this Act; or
  • fails to leave the premises promptly after being asked to do so by the occupant or a person authorized by the occupier,
    • is guilty of an offence and, if convicted, faces a fine of up to $10,000. R.S.O. 1990, c. T.21, s. 2 (1); R.S.O. 2016, c. 8, Sched. 6, s.

Colour of Right as a Defence

(2) It is a defence to a charge under subsection (1) if the person accused reasonably thought that he or she possessed title to or an interest in the land that entitled him or her to undertake the act complained of. c. T.21, s. 2 R.S.O. 1990 (2).

Prohibition of Entry

  1. (1) Entry on premises may be forbidden by notice, and entry is prohibited even if no notice is posted.

(a) a garden, field, or other cultivable ground, including a lawn, orchard, vineyard, and premises on which trees have been planted but have not reached an average height of more than two metres, as well as woodlots on territory principally utilized for agricultural reasons; or

(b) that is fenced in a way that suggests the occupier’s purpose to keep people or animals from the premises. 1990, c. T.21, s. 3 R.S.O. (1).

Implied Permission to use Approach to Door

(2)There is a presumption that access to the door of a building on grounds for authorized purposes by a method evidently supplied and utilized for that purpose is not banned. 1990, c. T.21, s. 3 R.S.O. (2).

Limited Permission

(1) If notice is given that one or more specific activities are authorized, all other activities and entrance for the purpose are forbidden, and any additional notice that entry is prohibited or a specific activity is prohibited on the same grounds is read to be for greater certainty only. c. T.21, s. 4 R.S.O. 1990 (1).

Limited Prohibition

(2) If entry on premises is not prohibited by section 3 or by notice that one or more specific activities are permitted under subsection (1), and notice is given that a specific activity is prohibited, that activity and entry for the purpose are prohibited, but all other activities and entry for the purpose are not prohibited. c. T.21, s. 4 R.S.O. 1990 (2).

Method of Giving Notice

  1. (1) A notice may be made under this Act,

(a) either orally or in writing;

(b) by posting notices in such a way that each usual point of entry to the property to which it applies is plainly visible in daylight under normal conditions; or

(c) using the marking system outlined in section 7. R.S.O. 1990, c. T.21, s. 5 (1).

Substantial Compliance

(2)  Substantial compliance with clause (1) (b) or (c) is sufficient notice. R.S.O. 1990, c. T.21, s. 5 (2).

Form of Sign

6.  (1)  A sign naming an activity or showing a graphic representation of an activity is sufficient for the purpose of giving notice that the activity is permitted. R.S.O. 1990, c. T.21, s. 6 (1).

Idem

(2) A sign naming an activity with an oblique line drawn across it or depicting a graphic depiction of an activity with an oblique line drawn through it is adequate to provide notice that the activity is forbidden. c. T.21, s. 6 R.S.O. 1990 (2).

Red Markings

(1) Red marks prepared and posted in accordance with subsections (3) and (4) are sufficient to notify visitors that entrance to the premises is banned. c. T.21, s. 7 R.S.O. 1990 (1).

Yellow Markings

(2) Yellow marks prepared and posted in compliance with subsections (3) and (4) are sufficient to give notice that access is banned save for the purpose of particular activities and shall be regarded to be notice of the authorized activities. c. T.21, s. 7 R.S.O. 1990 (2).

Size

(3) A marking under this section must be large enough to accommodate a circle ten centimetres in diameter entirely inside it. c. T.21, s. 7 R.S.O. 1990 (3).

Posting

(4) Markings required by this section must be set in such a way that they are plainly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which they apply. c. T.21, s. 7 R.S.O. 1990 (4).

Notice Applicable to Part of Premises

8. A notice or authorisation under this Act may be provided in respect of any part of an occupier’s premises. 1990, R.S.O., c. T.21, s. 8.

Arrest without Warrant on Premises

9. (1) A police officer, the occupier of premises, or a person authorized by the occupier may arrest without a warrant any person he or she suspects is on the premises in violation of section 2 on reasonable and probable grounds. R.S.O. 1990, c. T.21, s. 9 (1).

Delivery to Police Officer

(2) If the person making the arrest under subsection (1) is not a police officer, he or she must immediately summon for the aid of a police officer and hand over the arrested person to the police officer. 1990, R.S.O., c. T.21, s. 9 (2).

Deemed Arrest

(3) A police officer who is given custody of a person under subsection (2) is presumed to have arrested the person for the purposes of the Provincial Offences Act provisions governing his or her release, continuing detention, and bail. 1990, R.S.O., c. T.21, s. 9 (3).

Arrest without Warrant off Premises

If a police officer believes, on reasonable and probable grounds, that a person has violated section 2 and has fled the premises, and the person refuses to give his or her name and address, or there are reasonable and probable grounds to believe that the name or address given is false, the officer may arrest the person without a warrant. 1990, R.S.O., c. T.21, s. 10.

Motor Vehicles and Motorized Snow Vehicles

If an offence under this Act is committed using a motor vehicle, as defined in the Highway Traffic Act, or a motorized snow vehicle, as defined in the Motorized Snow Vehicles Act, the driver of the motor vehicle or motorized snow vehicle is liable to the fine provided under this Act, and if the driver is not the owner, the owner of the motor vehicle or motorized snow vehicle is liable to the fine provided under this Act unless the driver is c 2000, c. 30, s.11.

Damage Award

12 (1) If a person is convicted of an offence under section 2 and another person suffers damage as a result of the person convicted during the commission of the offence, the court shall, at the request of the prosecutor and with the consent of the person who suffered the damage, determine the damages and enter a judgment for damages against the person convicted in favour of the person who suffered the damage. R.S.O. 1990, c. T.21, section 12 (1); R.S.O. 2016, c. 8, Sched. 6, section 2.

Cost of Prosecution

(2) Where a prosecution under section 2 is conducted by a private prosecutor and the defendant is convicted, the court shall determine the actual costs reasonably incurred in conducting the prosecution and, despite section 60 of the Provincial Offences Act, shall order those costs to be paid by the defendant to the prosecutor. 1990, R.S.O., c. T.21, s. 12 (2).

Damages and costs in Addition to Fine

(3) A judgment for damages under paragraph (1) or a cost award under subsection (2) is in addition to any penalties imposed under this Act. 1990, R.S.O., c. T.21, s. 12 (3).

Civil Action

(4) A judgment for damages under paragraph (1) precludes the person in whose favour the judgment is rendered from bringing a civil action for damages against the person convicted based on the same circumstances. 1990, R.S.O., c. T.21, s. 12 (4).

Idem

(5) Failure to request or refusal to award a judgment for damages under paragraph (1) has no bearing on the right to launch a civil action for damages based on the same circumstances. 1990, R.S.O., c. T.21, s. 12 (5).

Enforcement

(6) The judgment for damages under subsection (1) and the award for costs under subsection (2) may be filed in the Small Claims Court and are assumed to be a judgment or order of that court for enforcement purposes. 1990, R.S.O., c. T.21, s. 12 (6).