Mr. Speaker, Bill C-207 would provide for an amendment to the code to create a new offence in relation to trespassing. It would also create a summary conviction offence of subsequent trespass. This offence would occur where a person trespasses on a dwelling house or other real property within 24 hours of having been lawfully removed from or prevented from entering the same property.
It essentially criminalizes the second trespass that occurs within a 24 hour period with respect to the same property.
The bill would provide for an amendment of the Criminal Code to create a new offence in relation to trespassing. The hon. member's bill would create a summary conviction offence of subsequent trespass.
This offence would occur where a person trespasses on a dwelling-house or other real property within 24 hours of having been lawfully removed from or prevented from entering the same property. Essentially, it would criminalize a second trespass.
It is important to begin with a clear understanding of what trespass means. Trespass is a specific legal term referring to a civil fault or tort. A trespasser is a person who enters a premises without the permission of the occupier or owner. A person invited on to the property can become a trespasser if the individual is revoked by the owner asking the person to leave. Nothing more is required for trespass to occur than for a person to enter without permission or to remain on the property after being asked to leave.
Even the most minimal intrusions on to property constitute a trespass in law. There is no need for any damage to be caused to the property. Trespass is a private matter between the trespasser and the occupier of the property. The proper remedy for trespass is a civil action for damages and injunctions are available in extreme cases to prevent future or ongoing trespass.
The existing law allows the owner of the property to lawfully eject the trespasser at any point. As a matter of property and civil rights, the law of trespass falls within the legislative jurisdiction of each of the provinces. In addition to the civil law relating to trespass, many provinces have enacted legislation creating provincial offences for trespass.
As a matter of property and civil rights, the law of trespass falls within the legislative jurisdiction of each of the provinces.
Trespass to property is not currently a criminal offence. Trespass is not a criminal offence because in and of itself it may be a relatively minor intrusion into the rights of another and may not be sufficiently harmful to require the criminal law as a response. The civil remedies combined with provincial legislation cover most situations.
Trespass to property is not currently a criminal offence. Trespass is not a criminal offence basically because, in and of itself, it may be a relatively minor intrusion into the rights of another, and not sufficiently harmful to require the criminal law as a response.
The Law Reform Commission of Canada studied the issue of whether to criminalize mere trespass without any further criminal intent or criminal conduct. The commission found this inadvisable. In addition to restating the fundamental principle that the criminal law should be used with restraint, the commission found that provincial trespass legislation and civil tort law provided adequate protection. The hon. member's proposed amendment does not seek to make a mere trespass a criminal offence. Instead, it is aimed at the mischief caused when a person who trespasses is asked or made to leave and then returns within a short period of time. It basically seeks to make a second trespass a criminal offence.
Since the first trespass is not a criminal offence, it is difficult in principle justifying making the second trespass a criminal offence. If a first trespass is not sufficiently harmful conduct to be considered criminal then it is not entirely clear what feature of the subsequent trespass makes it serious enough to be criminal.
Certainly it does aggravate the owner and requires the owner to eject the trespasser a second time. But this added aggravation in itself is not sufficiently harmful to render the trespasser subject to the criminal process although at this point they may clearly be violating the civil property rights of the owner of the property and be subject to a civil action and they may also be violating other provincial legislation.
Certainly, it does aggravate the owner and require the owner to eject the trespasser a second time, but this added aggravation in and of itself is not sufficiently harmful to render the trespasser subject to the criminal process, although at this point they may clearly be violating the civil property rights of the owner of the property, and be subject to a civil action, and they may also be violating other provincial legislation.
Also, the hon. member's proposal creates a somewhat arbitrary offence as well in that it criminalizes a return to the property only within 24 hours. It is not exactly clear why two trespasses within 24 hours should be a crime and not two within 25 or 30 hours.
In many situations there might be little or no serious harm caused to society but the mere presence of a trespasser if there is not also some more serious criminal intent or interference with the rights of others. While it may be the case that a property owner is inconvenienced or aggravated by the repeat trespasser, the hon. member's proposal would make a criminal out of every person who returned to a place after having been asked to leave.
For instance a door to door salesman who we all know tries twice to sell his wares would be captured as would be the teenager delivering flyers against the wishes of a homeowner. Such people may very well be a nuisance to the property owner and this kind of behaviour may well be a violation of civil or provincial law, but there should be evidence of at least more serious or potential harm before that behaviour is deemed to be criminal under the Criminal Code.
I recognize the hon. member's concern that it can be difficult to deal with a teenager who returns to a favourite spot to loiter or a person who returns to a party after having been asked to leave. What is really at issue in these instances is the occupier's desire to control what happens on their property, and this is a matter regulated by the civil law of the provinces and in some cases by provincial offences.
This is not at all to say that the existing criminal law does not protect the rights of property owners and occupiers. This government strongly supports and protects private property rights and various legislative provisions in the Criminal Code already address many forms of conduct by a trespasser who poses a real risk to society and to individuals.
For instance, it is an indictable offence to break and enter into any place with intent to commit and indictable offence. A person breaks and enters not only where they forcibly find a way in but if they enter by an existing permanent or temporary opening without lawful justification or excuse. In the case of a dwelling house it is a further offence to be in the dwelling house without lawful excuse with intent to commit an indictable offence.
These offences criminalize the conduct of a trespasser who is trespassing for the purpose of committing a serious criminal offence. In these cases, there is serious harm or potential for harm caused by the trespasser. They also recognize that if the trespasser is present for an innocent purpose, for instance a lost hiker seeking refuge from the elements in a cabin, there would be no criminal offence. There may, however, be a tort and the property owner could sue for any damage to the property.
An additional offence is in section 177 of the Criminal Code which creates the offence of trespassing at night. This offence prohibits loitering or prowling at night on someone else's property near a dwelling house. Here the circumstances of the trespass are clearly in and of themselves serious enough to warrant being criminalized.
The Criminal Code also contains various offences that prohibit behaviour that interferes with the rights of others to enjoy public and private spaces. For instance, section 175 of the Criminal Code makes it a summary conviction offence to cause a disturbance in a public place in various ways such as screaming, shouting or impeding people.
It is also an offence to loiter in a public place while obstructing people. Further, it is an offence to disturb the peace and quiet of the occupants of a dwelling house by disorderly conduct.
These offences target the harmful and disturbing consequences of conduct on others who are lawfully entitled to peace or to unimpeded movement in public places. A trespasser who goes so far as to interfere with the rights of others in these ways by causing a disturbance or by interfering with people's movements commits an offence and can be charged accordingly. For example, the teenager who loiters in a shopping mall would be committing an offence if his behaviour was disturbing others or preventing them from moving freely.
If the teenager is sitting quietly despite being asked to leave repeatedly, he may very well be violating the mall owner's property rights in some way or committing a provincial offence and the mall owner will have options available under provincial law. However, the teenager should not be labelled a criminal if he is not disturbing or interfering with anyone else.
The hon. member's proposal would criminalize the mere trespass without any requirement of proof of a negative impact on the person's free movement or right to undisturbed enjoyment of public places. The criminal law should target the harmful consequences of action instead of criminalizing all action simply because they may have a negative impact under certain circumstances.