Trespass to Property Act

All Security Guards should be familiar with the excerpts from the T.P.A. The phrase, “Agent of the Occupier” under the act includes Security Guards who have been contracted by the Owner or Agent of Private Property. We are contracted to protect life, property and minimize liability allowing the facility to operate normally. We are responsible to ensure compliance with the rules and regulations on the property, including laws as well as maintaining order and providing a reasonably safe environment.

You must be familiar with the specific arrest authorities as provided in the act, below:

Section 2,

1. Every person who is not acting under a right or authority conferred by law and who,
   1. without the express permission of the occupier, the proof of which rests on the defendant, (Called a “reverse onus” under the law, meaning it is up to the subject to prove otherwise)
   1. 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 $2000.00

   Most trespass issues are best handled by means short of arrest.

   You should define any breach of the “Mall Code of Conduct”, describing it as Engaging in Prohibited Activity, or Entry Where Entry is Prohibited, or Refusing to Leave after Directed to do so, if appropriate for an arrest.

   Section 9, (1) allows for a police officer or the occupier of the premises, or a person authorized by the occupier (agent-Security Guard) to arrest without warrant any person believed on reasonable grounds to be on the premises in contravention of section 2.

   Section 9, (2) provides that you must promptly call for the assistance of a police officer and give the person arrested into their custody.

   Case Law Specific to Trespass:

   R V Asante-Mensah [2003] S.C.J. No.38

   This decision traced the legal meaning of “reasonable force” related to a trespass arrest undertaken by private citizens in Ontario. The judge stated, “If the party conducting a legal arrest has no power to employ reasonable force to effect the arrest in the face of unlawful resistance, the law would create a situation in which the party being arrested is free to resist without any fear of reprisal.”

   As long as force used is reasonable considering all of the circumstances, then using force to conduct the arrest is justifiable. This decision also stated clearly that many arrests are so “trivial” in nature that they are best handled by means short of arrest.

   This decision is binding on all lower courts in Ontario.

   Tucker v. Cadillac Fairview Corp. [2005] O.J. No. 2921

   In another decision the court document discusses justifications for trespass arrest in relation to whether an arrest is reasonable in the first place. This decision also takes into account if a defendant is liable in tort (owes a debt in a law suit) according to what the criminal law states is justifiable and is not justifiable conduct.

   It is once again reinforced that many trespass offences are of trivial importance and are best handled by means short of arrest. This ruling further reinforces the concepts noted above, as the circumstances in the Asante-Mensah case were extreme and all other attempts to secure the subject’s compliance had failed, therefore arrest was a reasonable course of action.

   Reasonable force under the Trespass to Property Act considers not only what force is necessary to accomplish the arrest, but also considering all of the circumstances was arrest a reasonable course of action in the first place?

   The judge also asked these fundamental questions regarding the tests if a trespass arrest is reasonable or not:

   1. What had the appellants (arrested persons) done to cause the Security Guards to view them as trespassers? Were these activities the subject of a complaint?
   2. Were the appellants (arrested persons) acting in a disruptive manner either before their arrest or at the time of their arrest?
   3. Had the appellants (arrested persons) previously received a trespass notice? Had they previously been prosecuted for trespassing?
   4. Is it likely that the appellants (arrested persons) would have left the mall in a reasonable period of time had Reverend Tucker been given the opportunity to purchase the book that he wished to buy?
   5. Once the appellants (arrested persons) were apprehended by the guards, did they offer to wait for a police officer to attend?
   6. Was it necessary to arrest the appellants (arrested persons) to prevent them from continuing their prohibited conduct (of soliciting)?
   7. Was the arrest of the appellants (arrested persons) necessary to preserve relevant evidence?

   If these criteria can be met and the matter could not have been reasonably dealt with by means short of arrest, these dialogues from Judges’ decisions provide strong precedents for trespass arrests that are justified under the circumstances.