Her Majesty the Queen - v. -, 2014 SKPC 89

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2014 SKPC 089 Date: May 8, 2014 Tickets: 7836780 & 7836781, pursuant to The Trespass to Property Act Location: Outlook _____________________________________________________________________________ Between: Her Majesty the Queen - and - Erin Michelle Peters and Christ John Hofer Appearing: Ms. L. Morelli For the Crown Mr. Hofer & Ms. Peters Defendants JUDGMENT S. P. WHELAN, J Introduction [ 1 ] The Defendants were each charged under s. 3 of The Trespass to Property Act , S.S. 2009, c. T-20.2; that they entered on certain premises when entry was prohibited.

If convicted they would have been liable to a fine of up to $2,000.00. The trial was held in Outlook, Saskatchewan on April 10, 2014 and I reserved my decision to this date in Outlook. [ 2 ] There were two issues in this case:

a) Should an amendment of the ticket concerning the location of the offence be permitted?

b) Was it proven beyond a reasonable doubt that entry upon the premises was prohibited pursuant to s. 3(1) of the Act ?

[3] I found that the Crown’s application to amend the tickets to conform to the evidence presented was in keeping withapplicable principles concerning amendment and that it did not prejudice the Defendants. Accordingly, I granted the application toprovide, with respect to the location at which the offence was said to have occurred to state: Near the SW 16 – 24 – 9 – W of 3rd, the property of Myles McIntosh, in Saskatchewan. [4] However, as I found that the Crown did not prove beyond a reasonable doubt that entry upon the premises was prohibited; anacquittal will be entered for each of the Defendants. Background [5] This is a prosecution pursuant to The Trespass to Property Act and The

Summary Offences Procedure Act, statutes of theProvince of Saskatchewan. The Trespass to Property Act was proclaimed in 2009. The Government of Saskatchewan, Ministry ofJustice, provides an explanation of this legislation, at http://www.justice.gov.sk.ca/Trespass-to-Property-Act, stating in part: The Trespass to Property Act is petty trespassing legislation of general application. It is not meant to replace legislation dealing withspecific trespass circumstances such as snowmobiling.

It seeks to balance the reasonable expectations of property owners or occupiersand those who want access to privately owned property for legitimate reasons. [6] As prosecution under The Trespass to Property Act contemplates proceeding by means of

summary conviction proceedings and apotential fine of up to $2,000.00, it necessarily imposes specific requirements upon a property owner or occupier insofar as putting thepublic on notice that entry onto certain land is prohibited. It does not replace remedies pursuant to the Criminal Code or other provinciallegislation; nor does it replace civil remedies concerning trespass, such as damages or an injunction, as may be available.

As it is quasi-criminal legislation, the Crown must prove the case beyond a reasonable doubt. [7] A property owner who wishes to rely upon The Trespass to Property Act with a view to making a complaint to the police and aticket being issued must have taken the necessary steps to notify the public that entry is prohibited pursuant to the Act.

Pertinentprovisions of the Act are set out below, which discuss the necessary steps in the context of this fact situation. [8] A property owner may either enclose the land with a fence and gates or post signs at access points to the property which prohibitentry; but these methods are not without practical limitations. An owner may also put an individual on notice that entry upon the propertyis prohibited by orally or in writing advising that person accordingly. Posting signs and enclosing the land by fencing are steps that notifythe public, including neighbours.

When a prohibition is directed at a neighbour or someone living or working in the area the notice iseffective but only with respect to the person to whom the notice is given and received. Findings of Fact [9] In making findings of fact in a criminal or quasi-criminal proceeding, a court necessarily assesses the evidence for credibility andreliability and having regard to the criminal burden of proof which is beyond a reasonable doubt. As such I have instructed myself withreference to the following decisions: R. v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 (S.C.C.), R. v. P.N.M. (1996), (SK CA), 141 Sask.

R. 221, 106 C.C.C. (3d) 1 (Sask. C.A.), R. v. Lifcus, (SCC), [1997] 3 S.C.R. 320 atparagraph 39, and R. v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788, at paragraph 23. See also with respect to the burden ofproof: University of Regina Faculty Assn. v. University of Regina, (SK KB), [1999] S.J. No. 389, at page 14 and R.v. Alsager, 2013 SKCA 129, at paragraph 26, and see

Part XXVII and s. 794(2) of the Criminal Code. [10] The Crown called two witnesses, Myles McIntosh, the property owner and occupier, and his son, Bruce McIntosh. I had nodifficulty in accepting the evidence of both of these witnesses as it pertained to the pertinent elements of the alleged offence. [11] Ms. Peters testified and like the Crown witnesses, on those points pertinent to this prosecution and the defence; I had nodifficulty accepting her evidence. Mr. Hofer did not testify.

He did, however, make a number of unsolicited statements in the course ofhis representations to the Court concerning the preliminary issue of the location of the alleged infraction, as well as the issue of notice. In

that regard, nothing Mr. Hofer said caused concern with respect to his credibility and reliability. [ 12 ] Some historical information about the breakdown of the relationship between these neighbours was presented. While it may have provided some context for the dispute, it was not relevant to my finding of guilt or innocence. Not all of the parties involved in this ongoing dispute were present or heard from and this decision is not an attempt to assess or address the overall dispute. However, before adjourning, an attempt was made to stress with those present how regrettable it is that neighbours have become embroiled in a dispute of this nature.

a) Should an amendment of the ticket concerning the location of the offence be permitted? Occupier and the premises [ 13 ] The Crown proved beyond a reasonable doubt that, having regard to The Trespass to Property Act , Myles McIntosh was the occupier of the premises or land in question. He testified that he owned 18 quarters of land including the land which was the subject of the ticket, the SW quarter of 16 – 24 – 9, W 3 rd . The ticket erroneously placed this parcel in the Rural Municipality of King George. The evidence established that the land is within the Rural Municipality of Couteau. [ 14 ] Mr.

McIntosh testified that he saw a vehicle which he recognized going toward this subject parcel of land. He sent his son Bruce McIntosh to investigate and it was he that found the Defendants on his father’s land at a location near to the neighbours’ land. While he did not state that this was the specific quarter of land identified in the ticket, he did establish that he found them on his father’s land. Amendment of the ticket [ 15 ] In light of the evidence and having found that there was no prejudice to the Defendants, I have granted the application to amend the ticket so that it conformed to the evidence.

Accordingly the ticket is amended to state: Near the SW 16 – 24 – 9 – W of 3rd, the property of Myles McIntosh, in Saskatchewan It is noteworthy that the ticket alleges that the offence took place near the subject property. Reasoning The Trespass to Property Act and The

Summary Offences Procedure Act [ 16 ] Pertinent provisions of The Trespass to Property Act and The

Summary Offences Procedure Act are set out below. Special note may be made of the underlined portions:

Interpretation 2 In this Act: (a) “ enclosed land” means land that: (

i) is surrounded by a fence, a natural boundary or a combination of a fence and a natural boundary; (ii) is enclosed in a manner that indicates the occupier’s intention to keep persons off the occupier’s premises or animals on the occupier’s premises; or (iii) is prescribed in the regulations;

. . . (c) “ occupier” includes: (

i) a person who is in physical possession of premises; (ii) a person who: (

A) has responsibility for and control over the condition of premises or of the activities there carried on ; or (

B) has control over persons allowed to enter in or on the premises; or (iii) a person prescribed in the regulations; Trespass prohibited 3(1) Without the consent of the occupier of a premises, no person who is not acting under a right or authority conferred by law shall: (

a) enter in or on the premises when entry is prohibited pursuant to this Act; (

b) engage in an activity in or on the premises if that activity is prohibited by this Act; (

c) after being requested either orally or in writing by the occupier to leave the premises, fail to leave the premises as soon as is practicable; (

d) after being requested either orally or in writing by the occupier to stop engaging in an activity in or on the premises, fail to stop the activity as soon as is practicable; (

e) after leaving the premises pursuant to a request to do so made pursuant to this Act, re-enter the premises; or (

f) after discontinuing an activity pursuant to a request to do so made pursuant to this Act, resume the activity in or on the premises.

(2) For the purposes of subsection (1), the onus rests on the defendant to prove, on a balance of probabilities, that he or she had the consent of the occupier to enter in or on the premises or to engage in the activity in or on the premises. Prohibited entry and activities 4(1) For the purposes of clause 3(1)(a), entry in or on premises is prohibited if any person: (

a) enters in or on premises that are the property of another person when a notice respecting the premises is given in accordance with

section 11; or (

b) enters in or on enclosed lands that are the property of another person .

(2) For the purposes of clause 3(1)(b), an activity is prohibited if it is an activity for which notice respecting the premises is given in accordance with

section 11.

(3) A person found in or on enclosed land is presumed not to have the consent of the occupier to be there. Prohibition of entry 8(1) Entry in or on premises may be prohibited by a notice given in accordance with

section 11 .

(2) Entry in or on any enclosed land is prohibited whether or not any notice is given pursuant to

section 11 with respect to that enclosed land.

(3) For the purposes of this Act, there is a presumption that access for lawful purposes is not prohibited to the door of a building on premises by means apparently provided and used for the purpose of access. Method of giving notice 11(1) A notice pursuant to this Act may be given: (

a) orally or in writing; (

b) by means of signs posted so that a sign is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises to which the notice applies ; or

(

c) by any other means prescribed in the regulations.

(2) Substantial compliance with clause (1)(

b) or (

c) is sufficient notice.

(3) A sign that is posted in accordance with clause (1)(

b) is sufficient for the purpose of giving notice that an activity is prohibited if the sign: (

a) names that activity and has an oblique line drawn through the name of the activity; or (

b) shows a graphic representation of that activity and has an oblique line drawn through that representation.

(4) A notice given pursuant to this

section may relate to all or part of any premises and different notices may be given or posted in relation to different parts of any premises.

(5) No person, other than the occupier, shall remove, alter or deface signs posted for the purposes of this section. Offence and penalty 14 Every person who contravenes any provision of this Act or the regulations is guilty of an offence and liable on

summary conviction to a fine of not more than $2,000 . [ 17 ] The alleged infraction of The Trespass to Property Act was prosecuted pursuant to s. 4(4) of The

Summary Offences Procedure Act, 1990 , S.S. 1990-91, c. S-63.1, which makes

Part XXVII of the Criminal Code applicable to provincial offences.

Section 4 provides in part: The

Summary Offences Procedure Act, 1990 Procedure generally 4(1) Subject to this Act, any other Act or any regulation, proceedings to enforce

an Act, regulation or bylaw by fine, penalty or imprisonment may be brought summarily before a justice under the

summary conviction provisions of the Criminal Code , as amended from time to time.

(2) In

an Act or regulation, the words “on

summary conviction” mean under and by virtue of the

summary conviction provisions mentioned in subsection (1). . . .

(4) Subject to this Act, any other Act or any regulation, Parts XXII, XXVI and XXVII, other than

section 840, and sections 20, 21, 22, 484 and 527 insofar as it relates to a witness, sections 718.3 , 719 , subsection 732(1) and

section 734.8 of the Criminal Code , as amended from time to time, apply, with any necessary modification, to: (

a) summary conviction proceedings before justices; and (

b) appeals from convictions, acquittals, sentencing or other orders made under

summary conviction proceedings.

b) Was it proven beyond a reasonable doubt that entry upon the premises was prohibited pursuant to s. 3(1) of the Act ? Was entry prohibited by means of a letter or posting signs? [ 18 ] Section 3(1) of The Trespass to Property Act, provides that without the consent of the occupier of a premises, no one, not otherwise acting under a lawful right or authority, shall enter premises when it is prohibited pursuant to the Act . Entry may be prohibited by means of notice. [ 19 ] The question may be stated: Was entry upon Myles McIntosh’s land prohibited under the Act by means of notice? The answer requires consideration of s. 4(1)(

a) and s. 11 of the Act which provide ways in which entry may be prohibited, including by notice:

(

a) orally or in writing, (

b) by posting signs that are clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises [ 20 ] Myles McIntosh said that he sent a letter to his neighbours, John and Linda Peters , prohibiting entry. However, there was no evidence that the Defendants received the letter. Ms. Erin Peters, one of the Defendants, is the daughter of John and Linda Peters. She testified that they avoided going onto Myles McIntosh’s property. However she acknowledged that on the day in question she and Mr.

Hofer were on his property and she explained that it was done in relation to the care of their cows. She denied receiving notice by means of the letter or otherwise. [ 21 ] Myles McIntosh testified that he had posted signs but that somebody kept tearing them down. That was the full extent of the evidence concerning signs posted. [ 22 ] I have a reasonable doubt as to whether the letter was conveyed to the Defendants. There was no direct evidence from Myles or Bruce McIntosh that notice was given to the Defendants and they denied receiving notice either by means of the letter or signs posted on the property.

In light of the evidence, I was unable to find that notice prohibiting entry was given. [ 23 ] Section 3(1)(

c) has no application because the Defendants left the property when requested to do so by Bruce McIntosh. Was it enclosed land? [ 24 ] Entry may also be prohibited pursuant to s. 4(1)(

b) of The Trespass to Property Act if the property is enclosed.

Section 2(

a) of the Act defines “enclosed land” and includes land that is surrounded by a fence, a natural boundary or a combination of a fence and a natural boundary. This may be the most effective means of prohibiting entry as the Act provides at s. 4(3) that a person found on enclosed land is presumed not to have the consent of the occupier to be there. [ 25 ] Myles McIntosh testified that his only direct neighbours were John and Linda Peters. A dispute between them involved a fence erected by these neighbours between their respective properties. Mr.

McIntosh testified that he had the land surveyed which established that the fence had erroneously been placed on his land so he removed it. There was no other evidence concerning fencing or enclosure by any other means. [ 26 ] Had the Crown proven that entry was prohibited, pursuant to s. 3(1) of the Act , the onus would then have shifted to the Defendants to establish, having regard to s. 3(2), that on a balance of probabilities, he or she had the consent of the occupier to enter the premises. This however did not come into play as the entry was not found to have been prohibited.

Conclusion [ 27 ] Each of the Defendants has been found not guilty of the offence of prohibited entry upon land pursuant to The Trespass to Property Act . ________________________ S. Whelan, J