Canadian Photography Laws » The Laws » Provincial Law » Ontario » Trespassing
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 any signs, you should not enter the following properties:
- Garden
- Field
- Any other land under cultivation
- Lawn
- Orchard
- Vineyard
- Anywhere with trees planted that average less than 2 meters in height
- Any fenced-in area
Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
is guilty of an offence and on conviction is liable to a fine of not more than $2,000. R.S.O. 1990, c. T.21, s. 2 (1).
Even on the above-listed properties, you can enter any property that provides notice (via a sign or verbal) that certain activities are permitted (for those allowed activities only), or any premises that implies permission to approach a door (for approaching the door only, of course).
Trespass to Property Act, 3.:3. (1) Entry on premises may be prohibited by notice to that effect and entry is prohibited without any notice on premises,(a) that is a garden, field or other land that is under cultivation, including a lawn, orchard, vineyard and premises on which trees have been planted and have not attained an average height of more than two metres and woodlots on land used primarily for agricultural purposes; or
(b) that is enclosed in a manner that indicates the occupier's intention to keep persons off the premises or to keep animals on the premises. R.S.O. 1990, c. T.21, s. 3 (1).
3. (2). There is a presumption that access for lawful purposes to the door of a building on premises by a means apparently provided and used for the purpose of access is not prohibited. R.S.O. 1990, c. T.21, s. 3 (2).
This is the important one: For properties not listed above, when there are no signs, 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 in 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 to Property Act, 4.:(1) Where notice is given that one or more particular activities are permitted, all other activities and entry for the purpose are prohibited and any additional notice that entry is prohibited or a particular activity is prohibited on the same premises shall be construed to be for greater certainty only. R.S.O. 1990, c. T.21, s. 4 (1).
(2) Where entry on premises is not prohibited under section 3 or by notice that one or more particular activities are permitted under subsection (1), and notice is given that a particular activity is prohibited, that activity and entry for the purpose is prohibited and all other activities and entry for the purpose are not prohibited. R.S.O. 1990, c. T.21, s. 4 (2).
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.
Trespass to Property Act, 2.:Every person who is not acting under a right or authority conferred by law and who,
(a) without the express permission of the occupier, the proof of which rests on the defendant,
(i) enters on premises when entry is prohibited under this Act, or
(ii) engages in an activity on premises when the activity is prohibited under this Act; or
(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier,
is guilty of an offence and on conviction is liable to a fine of not more than $2,000. R.S.O. 1990, c. T.21, s. 2 (1).
Note that this is a law (a provincial statute), so the owner can not “sue you for trespassing”, however, they can call the police and have you arrested and charged with trespassing, at which point the government can fine you. Unless you actually damage something, it is unlikely that property owner can sue you under Civil Law. If you are convicted of trespassing, the property owner can not sue you under Civil Law.
Trespass to Property Act, 12.(4):A judgment for damages under subsection (1) extinguishes the right of the person in whose favour the judgment is made to bring a civil action for damages against the person convicted arising out of the same facts. R.S.O. 1990, c. T.21, s. 12 (4).
If you trespass, the property owner, or security guard, can arrest you (“citizen’s arrest” — although this term is not used in Canada).
Trespass to Property Act, 9.:
Arrest without warrant on premises
(1) A police officer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. R.S.O. 1990, c. T.21, s. 9 (1).
(2) Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. R.S.O. 1990, c. T.21, s. 9 (2).
(3) A police officer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail. R.S.O. 1990, c. T.21, s. 9 (3).
Trespass to Property Act, 10.:
Arrest without warrant off premises
Where a police officer believes on reasonable and probable grounds that a person has been in contravention of section 2 and has made fresh departure from 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 police officer may arrest the person without warrant. R.S.O. 1990, c. T.21, s. 10.
If you trespass and run away, the police, property owner, or security guard may use as much force as is reasonably necessary to arrest you. Should you be arrested by someone other than the police, they must hand you over to the police as quickly as reasonably possible.
Note that this is in addition to the Federal Criminal Code that gives Canadians the power to perform a Citizen’s Arrest, however, this power is only when an indictable offence is being committed, such as Breaking and Entering. Only then can the owner arrest you using the rights in the Criminal Code.
Criminal Code, 25.(1): ("Protection of Persons Administering and Enforcing the Law")
Every one who is required or authorized by law to do anything in the administration or enforcement of the law
(a) as a private person,
(b) as a peace officer or public officer,
(c) in aid of a peace officer or public officer, or
(d) by virtue of his office,
is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.
Trespass to Property Act, 9.(2):
Where the person who makes an arrest under subsection (1) is not a police officer, he or she shall promptly call for the assistance of a police officer and give the person arrested into the custody of the police officer. R.S.O. 1990, c. T.21, s. 9 (2).
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.
Many stores, for inventory control and shoplifting reasons, will ask you to present your receipt and purchased merchandise for inspection when leaving the store. Once you pay for the purchase, the merchandise becomes your property, and the store has no right to inspect your property, search you, or detain you. Assuming you have not shoplifted, if the store detains you, forcibly searches you, or arrests you, you can sue them under civil law, and they may be breaking the Criminal Code (Kidnapping, Misleading Justice).
References
- Trespass to Property Act
- Criminal Code of Canada (Federal)
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