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Trespass to Property Act - History

28-May-2010 by Belinda Cole [170]

• 1) A brief history of the Act by the 2003 Supreme Court of Canada

Trespass to Property Act

This excerpt from R. v. Asante-Mensah, 2003 SCC 38, [2003] 2 SCR 3, of the Supreme Court of Canada discusses the history of the Act:

"(a) Trespass to Property Act

29 First enacted in 1834 as the Act to provide for the Summary Punishment of Petty Trespasses and other offences, S.U.C. 1834, 4 Wm. 4, c. 4, the statute authorized a land owner or his or her agent to apprehend individuals for trespass and deliver them to a Justice of the Peace. The arrest provision (which remained virtually unchanged until 1980) provided that “any person found committing any such trespass as aforesaid may be apprehended without a Warrant, by any Peace Officer, or the owner of the property injured, or the servant or any person authorised by him, and forthwith taken to the nearest Justice of the Peace to be dealt with according to Law” (s. 5 (emphasis added)).

30 In a discussion paper produced in 1979, the Ontario Ministry of the Attorney General argued that the purpose of the TPA was to provide a relatively quick, cheap and intelligible remedy for trespass: Discussion Paper on Occupiers’ Liability and Trespass to Property (1979), at p. 13 (“1979 Discussion Paper”). The TPA, it was noted, did not replace the common law remedies, but gave occupiers additional rights: 1979 Discussion Paper, at p. 13; R. v. Page, [1964] O.J. No. 383 (QL) (H.C.), at para. 6 (“[t]he Petty Trespass Act . . . is a very old statute which gives the occupiers of premises certain additional rights to those enjoyed at common law”).

31 In 1980, the Petty Trespass Act, R.S.O. 1970, c. 347, was reformed and the Occupiers’ Liability Act, S.O. 1980, c. 14, was enacted in order to facilitate prosecutions and increase the protection of interests of rural landowners. In the Ministry of the Attorney General’s 1979 Discussion Paper, at p. 13, the inadequacy of the existing Act from the landowners’ perspective was seen to be threefold:

First, the wording of the existing offence is unclear and, along with other factors, leads to difficulties in prosecution. Second, the law does not deter trespass onto land under cultivation even though significant farm losses are caused by trespassers. Third, the Act does not ensure the privacy of occupiers of land or permit the control of recreational activities.

32 Accordingly, the Trespass to Property Act, 1980, S.O. 1980, c. 15, provides owners or agents of the owners with a number of options. Under the current law, s. 2 makes trespass a provincial offence subject to a fine of up to $2,000. Occupiers may direct persons to leave a property (s. 2(1)(b)), and give notice that further activity or entry onto the property is prohibited either absolutely (s. 3) or within limits (s. 4). More intrusively, as already discussed, occupiers or their agents (and police officers) are empowered to arrest without warrant if on reasonable grounds they believe the individual is trespassing (s. 9). The inconvenience and indignity of being arrested may sometimes be seen as more of a punishment than the amount of the fine ultimately levied. It is equally, on that account, more of a deterrent.

See also : Suspension ban trespass policy?

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