Trespass Act

Canadian Photography Laws » The Laws » Provincial Law » British Columbia » Trespass Act

When you are on private property, what you are allowed to do may be limited by the owner of the property, or by someone acting on the owner’s behalf, like their security guard.

If the property owner puts up signs, or tells you not to do something (eg: no trespassing, no photography, keep off grass, etc), then disobeying the signs or verbal instructions is trespassing. If you are asked by the owner to leave the property, you must leave immediately, otherwise you are trespassing. Without signs, you should not trespass on any fenced-in area.

Trespass Act, 3.:
(1) Subject to section 4.1, a person commits an offence if the person does any of the following:
(a) enters premises that are enclosed land;
(b) enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited;
(c) engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited.
(2) A person found on or in premises that are enclosed land is presumed not to have the consent of an occupier or an authorized person to be there.
(3) Subject to section 4.1, a person who has been directed, either orally or in writing, by an occupier of premises or an authorized person to
(a) leave the premises, or
(b) stop engaging in an activity on or in the premises,
commits an offence if the person
(c) does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or
(d) re-enters the premises or resumes the activity on or in the premises.

When there are no signs or fences, you may enter the premises, and perform any lawful activity you wish, unless told otherwise by the property owner (or someone acting on behalf of the land owner, like a security guard). This is why you are allowed on private-but-open-to-the-public property, like malls. However, you should always use common sense. For properties that have notice (signed, verbal, etc), you must abide by the notice, but you may still perform any lawful activity on the premises that is not prohibited.

Trespass Act, 3.:
(1) Subject to section 4.1, a person commits an offence if the person does any of the following:
(a) enters premises that are enclosed land;
(b) enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited;
(c) engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited.

However, if you are taking photographs in a mall, or some other privately-owned-but-open-to-the-public property, and their security guards confront you, they can permit or deny you from doing any activity on the premises, just by telling you.

Since they are acting on behalf of the owner, they can control what you are allowed to do, where you are allowed to go on the property, or whether you are allowed there at all. If they tell you that photography is not allowed, continuing to take photographs is trespassing. They may also simply ask you to leave, and by not doing so in an orderly fashion, you are trespassing. They can also ban you from the property, in which case, if you come back, your trespassing.

There does not need to be any existing policy, the owner can allow or disallow things at will, applying to everyone, or on a per-person basis.

Trespass Act, 3.:
(3) Subject to section 4.1, a person who has been directed, either orally or in writing, by an occupier of premises or an authorized person to
(a) leave the premises, or
(b) stop engaging in an activity on or in the premises,
commits an offence if the person
(c) does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or
(d) re-enters the premises or resumes the activity on or in the premises.

If you refuse to leave, the owner can call the police and have you arrested and charged with trespassing, at which point the government can order compensation.

Note that although the Federal Criminal Code gives Canadians the power to perform a Citizen’s Arrest, it is only when an indictable offence is being committed, such as Breaking and Entering. Only then can the owner arrest you.

Trespass Act, 11.:
(1) The Provincial Court, on application of an occupier of premises or another person injured, may order a person convicted of an offence under section 4 or 5 (7) in relation to those premises to pay restitution for the damage or loss that was sustained by the occupier or other person as a result of the commission of the offence.
(2) If an order is made against a defendant under subsection (1), no action for damage for trespass lies against the defendant for the loss or damage of the occupier or other person sustained as a result of the commission of the offence.

If you trespass, and are seen by the police, they can arrest you.

Trespass Act, 10.:
(1) In this section, “peace officer” means a peace officer described in paragraph (c) of the definition of “peace officer” in section 29 of the Interpretation Act and includes a conservation officer as defined in section 1 (1) of the Environmental Management Act.
(2) A peace officer may arrest without warrant any person found on or in premises if the peace officer believes on reasonable and probable grounds that the person is committing an offence under section 4 in relation to the premises.
(3) If a peace officer believes on reasonable and probable grounds that a person has committed an offence under section 4 and has recently departed from the premises, the peace officer may arrest the person without warrant if
(a) the person refuses to give his or her name and address to the peace officer on demand, or
(b) the peace officer believes, on reasonable and probable grounds, that the name or address given by the person to the peace officer is false.

No private citizen has the right to search you, your car, or other belongings. However, being searched may be a condition of entrance to private property or an event. If you refuse a search, expect to be refused entrance to the event or property.

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I am not a lawyer, and this is not legal advice. For more information, see the Disclaimer.