October 22, 1981
The Honourable Alan Williams
Attorney General of British Columbia
Victoria, B.C. V8V 1X4
Dear Mr. Williams:
Re: Trespass Act amendments
We are writing to express our concern about the amendments to the Trespass Act enacted in the last session of the legislature. Before the Act was amended, it contained certain provisions that were of some concern to us. But it attracted little attention, in part because it applied only in certain areas of the province and in part because enforcement seems to have been lax. The amendments made in the last session of the legislature have turned what was in practice a minor violation of civil liberties into a problem of considerable magnitude.
Our first concern is that the amendments cause a considerable expansion of the provincial offence of trespass. We recognize that trespass is a tort and that an occupier of land can bring a civil action for trespass. We also recognize that a penal sanction may be justified with respect to certain portions of a person’s property. For example, we would have no objection to a provision making it an offence to enter a dwelling house without the permission of the owner, and some other structures and areas may warrant similar protection. It also would be reasonable to make it an offence to trespass if the entry resulted in significant damage. However, we do not believe that the province is justified in making every entry of “enclosed land” an offence especially when the entry is into a field or wooded area and does no harm. Such trespasses have been controlled by civil rather than criminal remedies for hundreds of years, and we believe it is mistake to use the penal process to deal with such minor intrusions. The use of the penal process to deal with such conduct helps create the impression that penal violations are not a serious matter. That is especially true in rural areas where the community norm is that a person can walk across the property of another if no harm is done.
Our objections go beyond the expansion of the offence of trespass, however. We object to the amendments to section 4 of the Act that place the onus on the accused to prove that he or she has the consent of the owner. We also object to the powers of arrest and questioning granted by section 13.1.
Whenever the burden of proof as of an offence is placed on an accused, there is some infringement of the right to remain silent and until proved guilty. The courts have, on occasion, upheld such reverse onus clauses, but we believe that they should be used, if at all, only in special circumstances after weighing the need for the rule against the cost of limiting the right to remain silent and the presumption of innocence.
The reverse onus clause established by the Trespass Act as amended seems to us entirely unjustified. Certainly, no justification could be based on the seriousness of the offence or the damage caused by the violation, for the offence is trivial and applies even though there is no damage. Moreover, reverse onus clauses have usually been enacted when a fact is specially within the knowledge of the accused and the prosecution could rot obtain evidence about the matter without the cooperation of the accused. For example, section 237(1)(a) of the Criminal Code places the onus on the accused who is found in the driver’s seat of an automobile to prove he or she did not intend to drive it. In such circumstances, the reverse onus clause might be considered an extension of the common law rule that the burden of proof concerning an issue is on the person with special knowledge of that fact. That argument cannot be used in the case of the Trespass Act, for the Crown can easily determine whether there was consent by talking with the owner of the land.
In short, this clause cannot be justified in terms of the reasons usually given for enacting reverse onus clause; however, the provision does increase the expense of defending a charge by requiring the accused to gather the necessary evidence. We hope you will agree that it would be entirely improper to enact such a clause simply for the purpose of making defence of a charge more difficult.
A second effect of the clause is to encourage police to lay charges even though there is no indication that the landowner objects to the presence of the people charged. We do not believe there is any harm to the public by simple trespass; the harm, if any, is a private one suffered by the landowner alone. Therefore, there is no reason to take any action except at the request of the landowner, and obviously no reverse onus clause would be needed in those circumstances.
It has been suggested by some that the Act is not really designed to protect landowners at all but to indirectly assist in the enforcement of drug laws. That would explain the desire to proceed even if the landowner makes no such request. But it hardly justifies the legislation since it would mean, if true, that the Trespass Act is being used for a purpose entirely different than that for which it was enacted and in a way that may well be unconstitutional.
For these reasons, we strongly urge that you repeal the reverse onus clause enacted by the amendment to section 4 of the Trespass Act as soon as possible.
We also object to the arrest powers provided in section 13.1 of the Act as amended. The problem created by subsection (1) of that section is its ambiguity. It is possible that the section could be interpreted as providing that a peace officer may arrest without warrant a person whom he or she reasonably believes to be in enclosed land even though he or she has no grounds to believe that the person is there without permission. Such an interpretation would mean that police could stop and question anyone found on “enclosed land” at any time. Indeed, the landowner would not be immune from such questioning. We believe that this interpretation is unjustified when the wording is read in the context of other sections of the Act. Nevertheless, it is not impossible that this interpretation will be adopted and, in any event, the wording is likely to give rise to considerable litigation.
Subsection (2) of section 13.1 causes more difficulty. Normally, a peace officer may arrest a person without warrant for a summary offence only if he or she finds that person apparently committing the offence. The power to arrest a person for offences after they have been committed applies only to indictable offences or to circumstances in which a person is escaping and is freshly pursued. The reason for these limits is that arrest without warrant deprives the arrested person of the important safeguard of approval by a court of the arrest. Arrest without warrant is treated by the Criminal Code as an exception to the general requirement that a warrant be obtained. Therefore, this exception should only apply when the person is caught in the act of an offence or special powers are deemed necessary because the offence is a serious one.
The Criminal Code and cases concerning powers of arrest have also placed limits on the power of a peace officer to require a citizen to provide identification. One of the primary purposes of the repeal of most of the vagrancy provisions was to limit the power of peace officers to question citizens. Except with regard to licensed activity such as driving a vehicle, the courts have permitted peace officers to demand identification only after an arrest has been made.
The powers granted by section 13.1(2) exceed the normal arrest and questioning powers in two respects. First, they empower an officer to stop a person for questioning in certain circumstances even though the person was not found committing an offence. Second, they require a person to provide identification although an arrest for the offence would not be justified. A special offence of failure to identify oneself is also created by the section.
We strongly urge that section 13.1 be deleted in its entirety. To the extent it merely codifies existing powers of arrest, it is redundant. To the extent that it provides special powers, it is an unwarranted extension of police powers to arrest and question. By no stretch of the imagination can the “mischief” prohibited by the Trespass Act justify such special police powers.