Ontario Trespass to Property Act FAQs
The Ontario Trespass to Property Act is the province's civilian/security services workhorse, where licensed premises and licensed events are not involved. It is important to remember that this Act contains civilian arrest authority but no civilian release authority. Once an arrest is made you must turn the arrested subject over to the police forthwith.
You cannot 'change your mind', 'give them a break' or 'get them off the property and let them go'! Nor can your supervisor, or any other civilian authority release them or order you to release them. If the subject believes they were arrested and released without police involvement they can have all persons involved charged and sued. The only exception is a tactical disengagement for safety reasons! Arrest is something you either don't start or you will finish. No games or excuses will be acceptable if and when this gets to court. (Yes, I've listed above some of the excuses I've been given over the years, they all are not acceptable under law.)
Now, let's examine the most common questions regarding this Act.
According to the act, who can be classified as an "occupier?"
An occupier can be (as persons authorized by the owner/occupier):
A tenant or guest in a residence
A security officer
A plain clothes officer preventing offenses on property
A bouncer in a bar
An "extra duty" or "paid duty" police officer
What qualifies as a "premises" under the definition in this Act?
Premises means just about any type of "real" property including trains, ships, trailers, and vehicles as long as it is not in service.
Under the T.P.A., what are the offenses for which a Security Officer may make an arrest without a warrant?
(1) Without permission enters when prohibited,
(2) Engages in a prohibited activity on the property
(3) Fails to leave when directed;
What does it mean?
An offense is committed if a person enters onto property when they are not allowed; everyone is prohibited ie: "NO TRESPASSING", An individual is prohibited - "barred or banned"; Engages in a particular type of behaviour. For example:
- On a farmer's land "No snowmobiling"
- In a pool - "No spitting"
- In a theater - "No cellular phones"
- In a restaurant - "No smoking"
- In a store - "No soliciting"
It is understood that engaging in behaviours or activities regulated by a criminal law on property guarded by security officers meets the threshold of trespassing.
A person fails to leave when asked to; if an individual does not leave, the occupier or their agent may have some limited arrest authorities.
Is a fence or sign always required?
If it grows, don't go there! A Lawn does not require a sign that says "KEEP OFF THE GRASS." It is implied that it is prohibited from being walked on.
What is the presumption in the TPA about when a person can approach a building or dwelling?
There is a presumption that access for lawful purposes to the door of a building or premises by a means apparently provided and used for this purpose. That reasonable entry is permitted if not completely blocked.(ie. Fence, closed and locked gate) This is for the purpose of communicating with the owner or occupier.)
If the invitation is removed (verbally, signs, written notice) the individual must leave. If they don't, they are trespassing.
In the enforcement industry such as property standards and bylaw enforcement, there is case law within other statutes that exempts them from prosecution under this act. They are on the property of others for a "lawful purpose" which exempts them as trespassers.
How can trespass notice be served under this act?
Verbally, in writing, or by way of a sign posted. All of these must be in accordance with the regulations under this act.
Can physical force be used to enforce the provisions of section 2?
There is no statutory authority within this act to use force. However the Asante-Mensah case established case law for the use of force under this Act (and there are links to the Criminal Code authorities) that have now entrenched a use of force authority for the T.P.A.
Are they trespassers?
Two teens jump a fence and begin to pick apples.
Yes, the teens are trespassing. If it grows, don't do there. Jumping a fence is trespassing - if it is enclosed, no sign is required.
The occupier may arrest the teens, or may call the police.
A man refuses to leave a bar after being asked to leave by the waiter.
Yes he is trespassing. The occupier via his agent, the waiter, has asked the man to leave. He has been verbally notified.
The occupier may arrest the man if he refuses to leave, or call the police to remove him. Provisions also exist in the L.L.A. to use force to remove the man(a legislative overlap).
A girl delivering newspapers to a house cuts across the grass in front of a sign that says "STAY OFF GRASS."
Yes, technically she is trespassing. Signs are not required for lawns and gardens. This becomes a can you vs. would you question on appropriate judgment in a given set of circumstances.
Two teens are found smoking in the washroom at WalMart. No smoking signs are posted at the store entrance and on the washroom doors.
Yes, they are trespassing. The teens are engaging in a prohibited activity. Signs are posted at the entry doors. The teens could be arrested by the store security officers. Security could call the police to deal with it or they simply could ask the teens to leave.
You are a security officer working the night shift in a home for the aged. During your rounds you discover a homeless man sleeping between the entry doors of the home. For the last three nights you have sent him away. Tonight, you can't seem to wake him up. Can you make an arrest? What should you, or could you do?
Your immediate concern is for the man's welfare. Call for emergency medical service and the police. Yes he is trespassing and yes, you can arrest him if the circumstances merit. (Remember the judgement element; 'can you', 'would you' and 'should you'? Always strive to take the most appropriate action. Don't allow "arrest" to become a 'default setting'.)
Remember the Ontario Trespass to Property Act gives civilians, potentially, sweeping arrest authorities but no release authorities. Always consider all of your other options before proceeding to make an arrest.