Legalities of Exploring in Ontario

Table of Contents

The Law
1) What is the exact law pertaining to trespass within the province of Ontario?
2) If I want to approach a property to ask for permission, is that in itself an act of trespass?
3) How is private property marked? Is there a specific format to be used for signage?
4) So I decide to trespass on someone’s property and the owner attempts to detain me. Are they legally allowed to detain me?
5) I am pretty scared now after reading all of this. What happens if I simply drive off after the property owner sees me?
6) What is the best policy to follow if confronted?
7) Is trespassing a criminal offence? Will I have a criminal record?
8) What is the charge for a TPA offence?
9) What is the process for making a citizen’s arrest?
10) Are there any defences for the TPA?
11) What happens when a motor vehicle is used in the commission of trespass?
12) Are there any limitations on trespassing charges?
13) What are some options to protect myself online?
Closing Comments

Disclaimer: This text file article is not intended to be legal advice nor is it intended to be interpreted as legal advice. The creator of this article accepts no responsibility for any criminal or civil damages that may arise out of use of the information contained in this article. The creator of this article makes no guarantee to the accuracy, legality, relevance, timeliness, or completeness of information contained herein. This article is for informational purposes only.

Introduction

The hobby that we refer to as “urban exploration” is unlike other hobbies in the sense that it may involve access to property that may not belong to us. For this reason it is important to be aware of the trespassing laws as they apply to Ontario. This post is not meant to help you break the law, it is to educate you as to the legalities of trespass.

If you are interested in exploring a location that does not belong to you, don’t become discouraged. Access is often available by going through the proper channels. This may involve a phone call to the property owner, knocking on the front door, or simply asking a security guard for access.

This article is not meant to assist you in breaking the law; it is meant to better help you understand the law. It is hoped that you will try all legal channels when you visit a location.

Finally under NO circumstances should you ever force your way into a location. There is a difference between trespassing and break & enter.

On a personal note, when looking at exploring any location for the first time, I will always try to ascertain the property owner first and seek permission to visit their property. This article will not focus on the ethical or moral issues ““ it is only to serve as an informational guide.

The Law

Before we discuss the law itself we need to define some key terms:

“occupier” includes,
(a) a person who is in physical possession of premises, or
(b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises,
even if there is more than one occupier of the same premises; (“occupant”)

“premises” means lands and structures, or either of them, and includes,
(a) water,
(b) ships and vessels,
(c) trailers and portable structures designed or used for residence, business or shelter,
(d) trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. T.21, s. 1 (1).

In other words, when the term “˜premises’ is used within this article it could be referencing a boat, trailer, railway car, plane, shed, house, barn, building, etc.

“night” is defined as the hours between 9 pm and 6 am.

TPA refers to the “Trespass to Property Act”

The law pertaining to trespass is covered under the Revised Statutes of Ontario (RSO), specifically R.S.O. 1990, CHAPTER T.21.

Section 2, subsection 1 states that:

Trespass an offence

1. (1) 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).

Translation: You must be acting under a right or authority to be on the property (example: you have been given permission, caretaker, security, etc.). The burden of proof rests on you to prove that you have the permission of the property owner to be on his/her property. You could be found guilty of trespassing if you are inside a dwelling or involved in an activity on property (eg. camping or hunting). You could also be found guilty if you do not leave the premises when asked to do so by the occupier or someone authorized to speak for them.

Example: If you are asked to leave property by a neighbor, and that neighbor has been given the authority to act on the behalf of the property owner, you are guilty of trespass if you refuse to leave.

No. Section 3, subsection (2) states that:

Implied permission to use approach to door

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).

Translation: If there is a door located on a property, it is presumed that access to that door is not prohibited as long as you are using it for legal reasons and that the door is for the purpose of entering and leaving.

This is defined in sections 5 to 7 of the TPA:

Method of giving notice

1. (1) A notice under this Act may be given,
   (a) orally or in writing;
   (b) by means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies; or
   (c) by means of the marking system set out in section 7. R.S.O. 1990, c. T.21, s. 5 (1).

Form of sign

(1) A sign naming an activity or showing a graphic representation of an activity is sufficient for the purpose of giving notice that the activity is permitted. R.S.O. 1990, c. T.21, s. 6 (1).

Example: A picture of a swimming means that swimming is permitted.

Idem
2) A sign naming an activity with an oblique line drawn through the name or showing a graphic representation of an activity with an oblique line drawn through the representation is sufficient for the purpose of giving notice that the activity is prohibited. R.S.O. 1990, c. T.21, s. 6 (2).

Red Markings

(1) Red markings made and posted in accordance with subsections (3) and (4) are sufficient for the purpose of giving notice that entry on the premises is prohibited. R.S.O. 1990, c. T.21, s. 7 (1).

Yellow Markings

(2) Yellow markings made and posted in accordance with subsections (3) and (4) are sufficient for the purpose of giving notice that entry is prohibited except for the purpose of certain activities and shall be deemed to be notice of the activities permitted. R.S.O. 1990, c. T.21, s. 7 (2).

(3) A marking under this section shall be of such a size that a circle ten centimetres in diameter can be contained wholly within it. R.S.O. 1990, c. T.21, s. 7 (3).

Size

(4) Markings under this section shall be so placed that a marking is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which it applies. R.S.O. 1990, c. T.21, s. 7 (4).

Translation: Section 7 basically means that a large red dot is sufficient notice to warn you that trespassing is not permitted. A yellow dot means that certain activities are permitted.

In areas such as a lawn, orchards or vineyards no notice is required. It is implied that this land is private property.

Section 9 of the TPA states that:

Arrest without warrant on premises

1. (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).

This further means that a neighbor may detain you if they are authorized to do so. Note that if you are detained by the property owner or someone acting on their behalf and you attempt to forcefully leave, you are RESISTING ARREST. This could upgrade what is a Provincial Offence to a Criminal Offence.

IMPORTANT INFORMATION REGARDING PRIVATE ARREST

Upon being detained by the property owner, they MUST turn you over to a police officer. The Trespass to Property Act has a civilian arrest authority but no civilian release authority.

The arresting person cannot ‘change their mind’, ‘give you a break’ or ‘get you off the property and let you go’! Nor can your supervisor, or any other civilian authority release them or order you to release them.

Once arrested, you must be turned over to the police. Period! Anything else could result in the person arresting you, being charged or sued.

This is stated in Section 9, subsection 2:

(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).

It is important to note that once you leave the property, you are not yet out of the woods. Section 10 states that:

Arrest without warrant off premises

1. 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.

In other words, if you get in your car and drive away, the property owner has a few options. They might decide to let the issue go, they might decide to go after you, or they might choose to phone the police. If the police are phoned, they do have the right to stop your vehicle. If they believe that you are giving them false information upon being stopped, you may be arrested.

The best policy is to always provide your TRUE identity to the police.

• They may become angry with you, demand to know what you’re doing, and ask you to leave
• They will simply ask you to leave
• The two of you will engage in friendly conversation when they realize that you are only packing a camera and have an interest in their location
  
  Worse case scenario:
• They will attempt to detain you and phone the police

In all reality, unless you are trespassing inside of an active building such as a hotel, hospital, have broken into a property or are vandalizing a location, it’s not all that likely that someone will try to detain you. This is not to say that they could not phone the police once you depart – as they could.

Also, if you are trespassing on a location with security present you have an increased chance of being detained. This may not occur but it has happened at locations such as Edgar.

Suggestion:
If your vehicle is parked in a hidden location and not seen by the property owner, you might choose to run away. In my experience, although property owners have sometimes shown some hostility towards us, once they see the camera, maps and hear our stories, they let us leave. We’ve never felt it necessary to run nor do we see any reason why you should do so.

No. Trespassing falls under the Provincial Offences Act, which means that it falls under provincial legislation. There is no criminal record involved. It is quite similar to receiving a speeding ticket except in that case it would be a Highway Traffic Act offence.

You should know however that it could be a crime if you trespass by night (9pm-6am):

Section 177 of the Criminal Code of Canada states that:

1. Every one who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction. [R.S., c.C-34, s.173.]

Translation: If you have an excuse, the burden of which can be proven, such as your missing dog running out from the bushes, you are likely to be let go. If you are caught in the bushes of an occupied house without a legitimate reason, you could be in serious trouble.

Note that this must occur at night, not the daytime.

It is approximately $65 and can be paid at your local Provincial Offences Office. Other alternatives include pleading not guilty or requesting more time to pay the fine.

A citizen’s arrest would be when a property owner or a security guard detained you. The process should be as follows:

a) The person should identify themselves and state to you that you are under arrest.
b) The person should lightly touch you on the shoulder or elbow to indicate that they are in control of the situation.
c) The person must give you a reason for being arrested, this is a requirement under the Charter of Rights and Freedoms.
d) Advise you of your right to legal counsel under the Charter of Rights and Freedoms.

This can also be used to your advantage. Let’s say that a security guard or private citizen attempted to arrest you for trespassing on property. They approached you and told you that you were under arrest and to wait until the police arrived. The police arrive and take you into custody.

What’s missing from this? The security guard or property owner did not advise you of WHY you were being arrested. This forms the basis of a great defense and having the charge thrown out, but this advice should be sought from a legal representative.

Trespassing is considered an “absolute liability” offence which means that it is up to you to prove your innocence, not for the accuser to prove your guilt.

There are however two defenses to the Trespass Act:

a) “color of right” A person believes that they have an honest belief that they had an interest in or title to the land in question, which would allow them to do as they wished on the land. An example to this would be a neighbor who places a fence on property that he thought was his. If an opposing neighbor establishes that the fence is on his property, the original neighbor would not be charged because he had an honest belief that the fence was on his property. This would be difficult to use as a defence for urban exploring.

b) “implied permission” ““ it is implied that a front door of a house will be used to receive visitors. A person wishing to speak to the owner of the premises is expected to use the front door and is not trespassing unless a notice is posted indicating otherwise.

If a vehicle has been found to have been involved in the commission of trespassing, the owner of the vehicle is liable for the offence and resulting fine. This applies if the operator of the vehicle cannot be identified. A police officer pointing out this fact may not have any difficulty in persuading the registered owner of the vehicle to identify the person who borrowed it.

Therefore if you have borrowed your father’s vehicle and commit trespass with it, if you are caught then you will face the resulting trespass charge. If you are not identified but the vehicle is, then your father is liable for the charge.

Explorers enjoy posting their photos online to sites such as Flickr and Facebook. The question is, could a person be charged with trespassing after the fact?

The answer might surprise you. There is a six-month limitation on Provincial Offences beginning from the date that the offence occurred.

Let’s say that you visit a location on March 11, 2009 and post photos of the location to your Flickr account on March 30, 2009. The owner of the location phones police on October 1, 2009 and they investigate your Flickr account. By this time the limitation period will have expired (six months from March 11, 2009).

In essence there is a statute of limitations on the Trespass to Property Act. Be forewarned though that it is possible, by appearing before a Justice of the Peace, to have that time period increased.

If you are really concerned about your privacy online and posting photos, then you will need to take extra precautions to hide your identity. This is a difficult process because you will need to do it each and every time you access your online account(s). Due to the slowness of anonymous surfing utilities, it is best to create an anonymous persona only for locations of sensitive value and to use your public persona for all others.

If you had to rely on anonymous services for 100% of your urban exploring surfing, you would become too frustrated given the slow bandwidth which can result.

The best way to hide your online Facebook/Flickr usage is by using TOR. TOR stands for The Onion Router. It works like this: packets leaving your computer are encrypted in layers (like an onion) and sent out to three different servers located around the world. After they stop at each server, a layer is removed from the packet and sent on to the next server. When your packet reaches the final server, it is then forwarded to the actual website you intended it for.

The best way to hide your online Facebook/Flickr usage is by using TOR. TOR stands for The Onion Router. It works like this: packets leaving your computer are encrypted in layers (like an onion) and sent out to three different servers located around the world. After they stop at each server, a layer is removed from the packet and sent on to the next server. When your packet reaches the final server, it is then forwarded to the actual website you intended it for.

Aside from TOR being too slow for continuous OAP use, you must also realize that each time you use TOR you appear from a different country because the three servers are always different. It might be concluded that you were “sharing” your account with other people even if you really aren’t ““ because of the different countries that you’re coming in from.

TOR is best used for those locations you want to post to external photo-sharing sites that you don’t need to ever go back and update again. It can be downloaded from www.torproject.org

Closing Comments

The Trespass to Property Act is meant to protect property owners from other citizens being on their land. This is any citizen’s right as I’m sure you would not appreciate people traveling from across Ontario to snoop through your backyard either.

If you are approached by a property owner, consider trying to set the precedent for future explorers. Be friendly and courteous and explain the reason for your presence. Show them your equipment, explain the historic significance behind their building and why you are interested in their buildings. Many people are willing to discuss the history of their property if given the opportunity. Permission is often only a phone call away.

There is nothing to be lost by being courteous. Being rude and ignorant will only make it more difficult (or police involvement more likely) for the next explorer.

Running away may even result in the property owner attempting to detain future explorers. Consider the “primal instinct” in which we want to chase those that seek to escape us.

Someting else to consider: this all depends on what you are exploring. There is a difference between an encounter with a senior citizen owning a farmhouse and a young security guard protecting a vacant hospital. One might be seeking someone to talk to while the other might be seeking to make himself look good via an arrest.

On a personal note: during the last decade I’ve only been confronted three times. In all three cases the property owners let me go or went on to show me around the area.

Use your best judgment and remember to “Take nothing but photos and leave nothing but footprints”.

Written by Talking Walls Photography