Public Commons

• 2009 lay summary of the Trespass to Property Act, and questions about the limits of city staff to make rules for how we, as citizens, use and enjoy our public amenities.

Part of Trespass To Property Act

This is a 2009 lay summary of the Trespass to Property Act, done in the context of looking at how the law affects our parks and public spaces.

The researcher is not a lawyer, and is not qualified to give legal advice. As well, please note that the law may have changed since CELOS did this 2009 summary; look for the current Act at http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90t21_e.htm.

CELOS did this summary in response to questions in three different areas - about the authority of city staff to make rules. In each case, city staff base their rule-making authority on the Trespass to Property Act. A 2012 decision by one city staff member to ban fishing on the waterfront was presumably also made on this understanding.

Media Policy tells us the rules made by Toronto Parks Staff about how and when park patrons and local staff are permitted to speak to the media on parks property.

Here's one story about how the policy works "on the ground" - Rules for serving the public: Don't.

2) Taking photographs in city parks and facilities - Photography Policy.

Here is an excerpt of the city position:

"...under the Trespass to Property Act the City of Toronto can prohibit activities, such as photography, from taking place on its property. The City is entitled to rely on this legislation to prohibit an activity even though no by-law exists." and, that: "as the landlord, the City of Toronto can enact certain rules and regulations for the welfare of those on its property"....Photography Policy Correspondence

3) Helmet Policyfor city rinks.

These policies are enforced as rules in parks, public facilities, and rinks across the city, often with curious results on the ground. In one case, city legal staff says that the Trespass to Property Act gives staff the power, in law, to make a rule that people cannot take photographs in parks without first obtaining staff permission.

CELOS researchers have questioned whether or not non-elected city staff actually have the power to make these rules for people in public facilities across the city. Node:147 the City of Toronto Act, which sets up the city and tells us how the city is to be governed, says that only elected Councillors can make policy, and that staff's job is only to implement the policies. Node:168

Trespass to Property Act

In the context of parks and public spaces and facilities this is a very cumbersome way to create an offence of trespass. It is drafted to prevent entry to property or forbid certain actions on the property unless the entering person can show that they have a legal right or authority to be there. [s.2] Is it possible for this type of law to respond, in spirit and intent, to the context of welcoming public space, accessible to all?

An entering person could defend against a prosecution for unlawful entry on the basis that s/he had a reasonable belief that s/he had "an interest in the land". Again, the possible defence to a charge of prohibited entry is a private law right. [s. 2(2)]

If a person enters the property without this authority, this is deemed to be an offence, for which the consequence, on conviction, is a fine up to $ 2000 [s.2] and - possible costs ("damages" which can be shown) suffered by the owner up to $ 1000, or [s.12 (1)] - the costs of a private prosecution of this offence [i don't know what this is, how it is done, under what circumstances, etc] [s.12 (2)] . Owners/occupiers (which specifically include school boards) are defined the same way as in the Occupier's Liability Act - including anyone with either physical possession or responsibility or control over the premises or activities.

Certain premises are deemed to be off limits at the outset, including gardens, fields or land being cultivated, lawns or enclosed areas Additionally, an owner can prohibit entry to other areas by notice - given orally or in writing or by a posted sign, or by marking out areas in a way set out in the Act. [ss. 3, 5-7]

This Act gives very wide powers of arrest- to police or to the occupier or to someone authorized by the occupier to arrest the entering person without a warrant if s/he believes on reasonable grounds that the person shouldn't be on or shouldn't be doing a particular thing the premises. [s. 9] An occupier or "authorized" person must immediately call and give the arrested person to the police. This "occupier arrest" [my term] is considered to be an arrest for the purposes of the Provincial Offences Act re: release, continued detention and bail. [s 9(2) (3)]

It continues these wide arrest powers to the police off the premises in the following situations: - police officer believes on reasonable and probably grounds that person entered property unlawfully (or did prohibited act on premises) - entering person has made "fresh departure" from the premises and - person refuses to give his or her name and address or - police believes on reasonable and probably grounds that the person has given false name and address

A person can be charged by entering by vehicle, and both the person entereing and the owner of the vehicle can be liable for the fine unless the driver did not have the owner's consent to drive the vehicle. [s. 11]

If an owner/occupier is granted damages [under small laims court procedure s. 12 (6)] or the costs of private prosectuion as part of the prosecution, he/she cannot bring a civil action on the same facts. If not, s/he can sue for damages in a civil action.