In
1980, the Ontario Legislature enacted the Trespass
to Property Act in order to remedy a number of perceived shortcomings in
the existing Petty Trespass Act
(first enacted in 1834 as the Act to
provide for the Summary Punishment of Petty Trespasses and other offences),
including the inadequacy of protections for farm landowners. The Ministry of the Attorney General noted at
the time that the existing law did “not deter trespass onto land under
cultivation even though significant farm losses are caused by trespassers.” The Petty
Trespass Act required that before a person could be prosecuted for entry on
agricultural land, the person must have had notice that trespass is prohibited,
or the land had to be enclosed or posted with signs. The Ministry further noted that modern
agricultural techniques to maximize crop yields had resulted in the removal of
existing fencing from fields and orchards, and that maintaining signage on
large open areas was impractical.
The
Trespass to Property Act prohibits
entry onto premises “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 lands used primarily for agricultural purposes.” Entry is also prohibited on premises 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.” A key element in both prohibitions is that no
notice or posted sign is required to prohibit entry. Entry is prohibited by virtue of the
agricultural use of or the enclosure of the land.
The
Ontario Court of Justice recently heard an appeal from a conviction under the Trespass to Property Act related to a
farm property. The appellant and others
had been hunting coyotes with the use of hounds and snowmobiles when one of the
hunters shot and wounded a coyote. The
appellant followed the wounded coyote’s tracks across an old split rail fence
with barbed wire (in poor condition in places) onto a woodlot area in the
neighbouring 96-acre farm property beyond the fence, and there shot the animal.
The
owner of that neighbouring property happened to be walking trails on his farm
at the same time, and heard the gunshots.
He confronted the appellant and told him to leave the property. The landowner viewed the entry as a trespass,
and he was also concerned for his safety given that a firearm had been
discharged on his property. Although the
appellant had permission from ninety percent of the landowners in the area to
hunt, he did not have the permission of the owner of the land where he shot the
coyote. The appellant was charged with
trespass under the Act, and convicted following a trial.
On
appeal, the issue was whether the appellant’s entry onto to the property beyond
the fence was a trespass in the absence of a notice or posted sign. At trial, the Justice of the Peace found that
no notice or sign was required because the land was bounded by a split rail
fence and barbed wire, which indicated the owner’s intention to keep persons
off the premises, and because the land was “in part a garden, in part a field,
or other land that is under cultivation.”
The appellate judge upheld the conviction. He found that, though the Justice of the
Peace didn’t specify it, the land was a woodlot on land used primarily for
agricultural purposes and so no notice of sign was required. The judge also agreed that the land was
enclosed in a manner indicating an intention to keep persons off the property.
In
making that finding, the appellate judge said the following in response to the
appellant’s contention that the dilapidated split rail and wire fence was not
an effective enclosure and that there was no evidence of an intention to keep
people out:
… this argument is
extremely narrow and places an unreasonable burden on landowners. It would
require them to rebuild fences upon their purchase of property and to testify
at trial as to their mindset in keeping and maintaining fences. In effect it
shifts the burden, in this strict liability offence, to the landowner to
establish and then re-establish again and again their intent. It also means
that persons who wish to access property would effectively have to interview
the landowner as to their mindset and the history of the fence. That does not
make sense. And it certainly is not in keeping with the purpose of legislation,
which is to allow property owners in agricultural areas to be free from
unwanted encroachments onto their property without the burden of onerous
notification and fencing requirements.
On
December 2, 2019, the Ontario Government’s Bill 156, the “Security from Trespass and Protecting Food Safety Act, 2019”,
passed first reading in the Legislature.
That proposed legislation would apply to all farms and animal processing
facilities at which farm animals are kept, and would prohibit entry to “animal
protection zones” – any enclosure for farm animals or other area marked as an
“animal protection zone” – without the prior consent of the owner or occupier
of the farm. The proposed legislation
specifies that the existing Trespass to
Property Act would no longer apply to “animal protection zones”.
In
debate on Bill 156, a government member explained that the new legislation
differs from the Trespass to Property Act
in the following ways, providing enhanced protection to the livestock industry:
·
It considers animal welfare and biosecurity as
a key component;
·
It covers the transportation of farm animals;
·
It provides that consent to enter an “animal
protection zone” cannot be implied;
·
It allows for consent to be voided if obtained
under false pretences;
·
It protects the owner or occupier from civil
liability if a trespasser is harmed;
·
It provides stronger recovery mechanisms for
harms caused by a trespasser; and,
·
It requires trespassers to identify themselves.
Existing
provisions under the Trespass to Property
Act would continue to apply to all property other than an “animal
protection zone”.
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