criminal trespass

Alberta cracks down on criminal trespass

Harsher fines and new category of corporate accountability pending
Tuesday, December 3, 2019
By Barbara Carss

New concepts of criminal trespass and corporate accountability for unauthorized entry onto a property will soon be enshrined in Alberta law. Bill 27, the Trespass Statutes (Protecting Law-Abiding Property Owners) Amendment Act, awaits royal assent after passing third reading in the provincial legislative assembly last week. Along with measures to discourage spurious lawsuits, the legislation has implications for commercial real estate operators and any organization with potential scofflaws among its employees or membership.

“When they were drafting this, the focus might have been on rural Alberta, but the consequences of this legislation are going to go beyond rural Alberta and will apply just as much in a retail mall as they will in ranch land,” says Patrick Heinsen, a partner with Borden Ladner Gervais LLP’s insurance and tort liability practice group in Calgary. “It’s an interesting piece of legislation. I guess we’ll see how it gets interpreted.”

Changes to the provincial Occupiers’ Liability Act will close most opportunities for criminal trespassers or their estates to claim damages for injury or death, while amendments to the Petty Trespass Act introduce penalties for corporations deemed to have “directed, authorized, assented to, acquiesced in or participated in the commission of the offence”. The latter is labelled “a first for Canada” and further extends liability to officers, directors and agents of a subject corporation.

Harsher fines and the spectre of imprisonment have also been added to what’s presented as an effort to combat rural crime. For individuals, the fee schedule will jump fivefold with first-time offences set at a maximum of $10,000 and subsequent convictions at a maximum of $25,000 — up from the current $2,000 and $5,000 thresholds for first-time and subsequent offences. The new corporate offence comes with a maximum fine of $200,000.

“The proposed changes in Bill 27 came directly from listening to rural residents whose lives have been affected by crime,” reported Doug Schweitzer, Alberta’s Minister of Justice and Solicitor General, as he introduced the legislation on November 19. “This legislation will not only protect property owners and help law-abiding Albertans feel safe in their communities, but also will ensure trespassers face the proper consequences for their actions.”

One of the more attention-getting elements of the legislation is generally perceived as a response to a much publicized 2018 incident in which a rural property owner injured an unlawful transgressor. Although that transgressor was later convicted of trespassing and criminal charges against the property owner were dropped, the trespasser launched a civil claim for personal injuries in September 2019.

The new rules, which will be retroactive to January 1, 2018, exempt property occupiers from liability in almost all such scenarios unless actions causing injury to trespassers are found to be “wilful and grossly disproportionate in the circumstances” and lead to a criminal conviction. The Act also gives occupiers scope to determine and respond to a perceived threat, stating: “a trespasser is a criminal trespasser if the occupier has reasonable grounds to believe that the trespasser is committing or about to commit an offence under the Criminal Code (Canada).”

“It’s not like any nefarious character was going to be successful (in a lawsuit) but property owners were left to deal with it. The new legislation really removes any basis for a lawsuit so the good farmers of Alberta don’t have that distress,” Heinsen says. “In order to be able to bring a claim for a personal injury suffered by a criminal trespasser, there would be two hurdles to crest.”

Nevertheless, some testing of the law is anticipated. “One interpretation the Courts will be called on to make is whether it was reasonable for the person trespassing to be deemed a criminal,” he speculates.

Little public discussion or controversy was evident in the nine-day period from the tabling of the legislation to third reading — “There has not been a major fanfare about it,” Heinsen observes — but opposition members of the legislative assembly (MLAs) raised concerns about the new fine schedule and the potential to cast a chill on public dissent.

NDP MLA Lorne Dach called proposed fines of up to $200,000 for organizations and corporations “a sledgehammer” during the legislative debate. “Is it something that is put into this legislation in an effort to once again stifle dissent or perhaps an effort to disassociate organizations from certain causes for fear of reprisal?” he asked.

Heinsen notes that it could be difficult for corporate or organizational officers and directors to prove that they did not assent or acquiesce to a trespassing offence unless they have somehow stated their dissent on the record at a board meeting.

“This would typically be prosecuted by the Crown and it would be interesting to see who they decide to use this against,” Heinsen says. “It certainly opens the door to some prosecutions that they may not have been confident in prosecuting otherwise.”

The new rules will come into force with royal assent of the legislation.

Barbara Carss is editor-in-chief of Canadian Property Management.

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