Trespassing law(s) in Ontario Canada

In the *print* edition of __ The Globe and Mail __ for 2004-OCT-21 on page A12
there is a postcard-size photo of a person apparently receiving a
ticket/summons/offence notice from a uniformed Toronto Police Officer.

The caption reads:
"
Protest against secrecy
Frank Barningham is being issued a ticket for trespassing by a Toronto
Police officer. He was demonstrating peacefully yesterday against the
Canadian Security and Intelligence Service (CSIS) in front of its
offices next to the [building] on [ ] Street.
"

Three possible jurisdictions of (by)-laws come to mind.
1) Criminal law.  All criminal law is in Canadian federal domain.
A Toronto Police Service officer can enforce criminal law.
2) Provincial offences.  Various non-criminal offences are defined by
the Province of Ontario.  Speeding is an example.  A Toronto Police Service 
officer can enforce provincial offences.
3) City of Toronto  by-laws passed by the municipal government.
Numerous by-laws for offences such as not picking up after Rover,
unlawful parking, or smoking in a restaurant.   A Toronto Police Service
officer can enforce Toronto by-laws.

Question 1) If the offence specified in the caption is "trespassing" which
jurisdiction would it be?  I suspect it is Provincial (ie. non-criminal).

Question 2) is there a hiper-link to the charge(s)/offence(s)?

Question 3) While being charged the officer will want to establish identity.
If the subject produces a valid piece of photo ID that includes name,
DOB, citizenship (e.g. passport) is that sufficient?  What about a
citizenship card
(no photo, just name, proves Canadian citizenship)?  In other words,
if the subject was not driving then a driver's license (photo, name,
DOB, address) should *not* be required, right?

I looked for the story in the Globe online edition but I could not find it.

http://www.theglobeandmail.com/

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Request for Question Clarification by aht-ga on 21 Oct 2004 16:21 PDT

grthumongous-ga:

In the Province of Ontario, trespassing on private property falls
under the Trespass to Property Act (R.S.O. 1990, Chapter T.21):

http://www.canlii.org/on/laws/sta/t-21/20040901/whole.html

A couple of clarifications, though, before I post an Answer:

- when you ask for a hyperlink to the charge(s)/offence(s), do you
mean the charges against Frank Barningham specifically, or do you mean
the contents of the Act as referenced above?

- your question regarding forms of identification, is the intent here
to establish what would be considered an acceptable form of ID, or is
it something else?

Thanks,

aht-ga
Google Answers Researcher

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Clarification of Question by grthumongous-ga on 21 Oct 2004 17:25 PDT

re: hiper-link

The requirement is that applicable law(s) be cited, not anything
specific to the subject who was being charged. Your response cites a
provincial offence of trespassing on private property, so if you think
he was charged with that offence then that is fine.

re: ID
If he is to be charged with your cited offence then what personal
information is the subject required to provide?  Does he have to prove
the information provided is valid by producing document(s)?

Depending on what information is legally required different forms of ID
might suffice.
A birth certificate "proves" identity without a photo, includes DOB,
but no address.
A passport proves identity with photo, includes DOB, citizenship, but no address.
A social insurance card "proves" identity with no photo,  no DOB, no
citizenship, no address.

A driver's license "proves" identity with photo, includes DOB,
includes address, but not citizenship.
 
Does the officer have the right to ask for ID, and if so, what
constitutes sufficient ID?  Alternatively, what information does the
officer require from the subject?

grthumongous-ga:

Thank you for the clarification; I'll tackle the three parts of your
question as follows.

First, at this time we have to rely on the caption you cited for the
offense that the accused was actually charged with. Trespassing is
perfectly plausible given the situation described in the caption
(peaceful protesting in front of the building), if the accused was on
private property. 'Trespassing' is actually a very fundamental concept
in most societies, falling into the realm of tort or common law. In
Canada, if the trespassing occurs "at night" (between 9pm-6am), it is
actually an offense under the Criminal Code. In the province of
Ontario, criminal trespassing during the day is codified in the
Trespass to Property Act, R.S.O. 1990, Chapter T.21.

You can read the entire text of the Trespass to Property Act through
the following link:

Ontario Trespass to Property Act - R.S.O. 1990, Chapter T.21
http://www.canlii.org/on/laws/sta/t-21/20040901/whole.html

Under this provincial law, trespassing occurs when someone remains on
private property after they have been instructed by the occupant of
that property to leave the property. This instruction can be in
written form (such as a 'No Trespassing' sign), or verbal (as in 'Get
the ***** off my property!'). Ontario's law has the highest maximum
fine in Canada, at up to $2000 per offense.

Of note is the provision in s.3.(2) of the Act, that states:

"(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."

In this case, if the accused was indeed 'protesting' outside the
building, that would not constitute an activity allowed by the
occupant and therefore the Act. As soon as the occupant requested that
the accused leave the property (either directly or through a police
officer), it became a crime for the accused to not leave as
instructed.

That addresses the first two parts of your question. Now for the
third, regarding identification. In Canada, it is the responsibility
of the Crown, not of the accused, to prove the identify of the
accused. This comes from the Canadian Charter of Rights and Freedoms:

http://laws.justice.gc.ca/en/charter/index.html

and in particular, the rights described in sections 7 through 14,
Legal Rights. Basically, the right to remain silent (so as not to bear
witness against oneself), the right to seek legal counsel, etc. An
accused has the right not to cooperate with an investigation and not
to volunteer information that can be used against him or herself. At
the same time, refusing to provide information such as proof of
identity can result in a longer holding period as the police would
need to detain the accused until their investigation uncovered enough
identifying evidence. Since the onus of proof (beyond a reasonable
doubt) of identify lies with the Crown (and the police acting as their
agent), the accused is not legally required to produce any particular
form of identification. If the accused does choose to cooperate, then
any form of identification that they provide would need to be
independently verified by the police anyway since part of their
preliminary investigation would have to look at the possibility of a
prior criminal record.

Please note that for laws such as the Trespass to Property Act, the
issue of citizenship does not apply. Canadian laws apply equally to
anyone in Canada, with the exception of individuals who have
diplomatic immunity. Again, it is up to the Crown to prove beyond a
reasonable doubt that an offense has occurred, it is not up to the
accused to prove their innocence (because until they are proven
guilty, they are indeed innocent). If an offence is based in whole or
in part on whether or not the accused is of a particular age, or lives
in a particular location, then the accused can help speed up the
Crown's investigation (and therefore reduce the hassle for themselves)
by providing identification that shows their age or address. For
activities that are regulated, such as driving, hunting, and fishing,
this identification would be in the form of a permit or license
allowing them to engage in said activity.


Further reference:
------------------

Criminal Code of Canada R.S. 1985, c. C-46
http://www.canlii.org/ca/sta/c-46/

Trespass at night
http://www.canlii.org/ca/sta/c-46/sec177.html


I hope that this helps!

aht-ga
Google Answers Researcher

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Request for Answer Clarification by grthumongous-ga on 21 Oct 2004 23:34 PDT

aht,
are you saying that the information the police could demand (or need
to uncover themselves through their own sources) would include address
and telephone number?

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Clarification of Answer by aht-ga on 21 Oct 2004 23:40 PDT

If the police officers conducting the investigation feel that they
need to provide the Crown with the accused's address and contact
information, then yes they would/could request that information (and
of course, the accused would be fully within his or her rights to
refuse to cooperate... knowing that such a refusal may result in the
police needing to hold them longer). For minor infractions that are
punishable by fine only, the police would want to have this
information for follow-up should the accused choose not admit guilt
and voluntarily pay the fine.

thanks aht.
Note: I saw a two-sentence brief in the Toronto Sun that said the
subject was part of a group of a half-dozen individuals in the
"lobby".
This information contradicts the Globe by placing the group *inside*
the building on (presumably) private property ==> trespassing.

BTW are you still on case number= 4_1_0_2_7_5?
I will check back tomorrow.

grthumongous-ga:

Thanks for the rating and tip! Indeed, if the group was inside the
building, then that would be a clear case of trespassing if they were
asked to leave and did not.

As for your other question, I was actually waiting to see if the
program I mentioned was of any assistance to you, first. Have you made
a decision on whether or not you are going to try it? I'll look for
your response in that other question.

Regards,

aht-ga
Google Answers Researcher