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Provincial regulation
Every province in Canada has trespass legislation, such as Ontario’s Trespass to Property Act. Only the territories rely on the common law. In some provinces, Privacy Acts, Motor Vehicle Acts, Fish and Wildlife Acts and even All Terrain Vehicle Acts may give a legal right to an owner to prosecute trespassers.
The purpose of any trespass legislation is to give greater control over entry or use of an owner’s or tenant’s premises, to provide penalties and remedies for breaches of the Act, and to facilitate the recreational use of private lands.
The law, in most cases, does not take away an owner’s or tenant’s right to sue for trespass, but usually grants the government the authority to seek its own sanctions as a way to control this sort of behaviour.
While trespassing is usually defined as the unlawful entry onto the private land of another, it also includes performing an unlawful activity on the land and refusing to leave when told to do so.
In some provinces, such as Ontario, there is a reverse onus provision. In Ontario, a person is presumed to be trespassing if he or she is found in a private garden, field or other land under cultivation, inside lands that are fenced for livestock or cultivation and on lands where notice has been posted. It is important to note that trespass is not presumed in privately owned natural areas if it is not posted as prohibited. This point is in line with the philosophy of encouraging recreational activity on privately held lands.
Offenders may be fined, in some cases up-to several thousand dollars. There are a number of defences available to a person charged under provincial trespass legislation. If there is a fair and reasonable supposition that an accused had a right to be on the land, the person may be acquitted. There is also an implied permission to approach a door of a building unless there is a notice warning people to stay away.
