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2004 Legislative Session: 5th Session, 37th Parliament

FIRST READING

The following electronic version is for informational

purposes only.

The printed version remains the official version.

HONOURABLE GEOFF PLANT

ATTORNEY GENERAL AND MINISTER

RESPONSIBLE FOR TREATY NEGOTIATIONS

BILL 72 – 2004

TRESPASS AMENDMENT ACT, 2004

HER MAJESTY, by and with the advice and consent of the Legislative Assembly of the Province of British Columbia, enacts as follows:

Section 1 of the Trespass Act, R.S.B.C. 1996, c. 462, is amended

(

a) in paragraph (

c) of the definition of "enclosed land" by striking out "

section 5; " and substituting "

section 5 (1); ",

(

b) by repealing the definition of "owner" and substituting the following:

"owner" , in relation to land, means a person registered in the land title office as the owner of the estate in fee simple of the land; , and

(

c) by adding the following

definitions:

"authorized person" means a person authorized by an occupier of premises to exercise a power or perform a duty of the occupier under this Act;

"occupier" , in relation to premises, means

(

a) if the premises are land, including enclosed land, foreshore and land covered by water, or are property described in paragraph (

a) of the definition of "premises", a person entitled to maintain an action of trespass in respect of those premises,

(

b) if the premises are property described in paragraph (

b) or (

c) of the definition of "premises", a person lawfully entitled to possession of those premises, and

(

c) if the premises are water, a person described in paragraph (

a) of this definition in relation to the land under the water,

and includes a person who

(

d) has responsibility for and control over the condition of the premises or the activities there carried on, or

(

e) has control over persons allowed to enter the premises;

"premises" means land, including enclosed land, foreshore and land covered by water, and anything on the land including

(

a) a building or other permanent structure,

(

b) a ship or vessel, train, railway car or vehicle, except while in operation,

(

c) a trailer or a portable structure designed or used as a residence, for shelter or to house a business, and

(

d) water;

"vehicle" has the same meaning as in the Motor Vehicle Act .

Section 4 is repealed and the following substituted:

Trespass prohibited

(1) Subject to

section 4.1, a person commits an offence if the person does any of the following:

(

a) enters premises that are enclosed land;

(

b) enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited;

(

c) engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited.

(2) A person found on or in premises that are enclosed land is presumed not to have the consent of an occupier or an authorized person to be there.

(3) Subject to

section 4.1, a person who has been directed, either orally or in writing, by an occupier of premises or an authorized person to

(

a) leave the premises, or

(

b) stop engaging in an activity on or in the premises,

commits an offence if the person

(

c) does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or

(

d) re-enters the premises or resumes the activity on or in the premises.

Defences to trespass

4.1 A person may not be convicted of an offence under

section 4 in relation to premises if the person's action or inaction, as applicable to the offence, was with

(

a) the consent of an occupier of the premises or an authorized person,

(

b) other lawful authority, or

(

c) colour of right.

Section 5 is repealed and the following substituted:

Methods of giving or posting notice

(1) For the purposes of paragraph (

c) of the definition of "enclosed land", signs must be posted so that, in daylight and under normal weather conditions, from the approach to each ordinary point of access to the enclosed land,

(

a) a sign is clearly visible,

(

b) if a sign contains writing, the writing is clearly legible, and

(

c) if a sign uses graphic representation, the graphic representation is clearly visible.

(2) For the purposes of

section 4 (1) (

b) or (c), notice may be given

(

a) orally or in writing, or

(

b) by means of a sign posted at or near an ordinary point of access to the premises so that, in daylight and under normal weather conditions from the approach to the ordinary point of access, the sign satisfies the requirements of subsection (1) (a), (

b) and (

c) of this section.

(3) In a prosecution for an offence under

section 4 (1) (a), (

b) or (c), proof that a sign that complies with subsection (1) or (2) (

b) of this section, as applicable, was posted at the ordinary point of access used by the defendant to enter the premises is sufficient for the purpose of establishing, as applicable, that

(

a) the premises are enclosed land, or

(

b) notice was given for the purpose of

section 4 (1) (

b) or (c).

(4) A sign, posted in accordance with subsection (2) (b), that names an activity and has an oblique line drawn through the name or that shows a graphic representation of an activity and has an oblique line drawn through the representation is sufficient for the purpose of giving notice that the activity is prohibited.

(5) A notice under this

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

(6) A person, other than an occupier or authorized person, must not remove, alter or deface signs posted for the purpose of subsection (1) or (2) (b).

(7) A person who contravenes subsection (6) commits an offence.

Section 6 is amended by striking out " A prosecution of a person under this Act " and substituting " The prosecution of a person for an offence under

section 4 (1) (a) ".

5 Sections 7 to 9 are repealed and the following substituted:

Trespasser must give name and address

(1) On the demand of an occupier of premises, or an authorized person, who has reasonable grounds to believe that a person is on or in the premises, or was on or in the premises, in contravention of

section 4 (1) (a), (

b) or (

c) or (3), the person must provide the occupier or authorized person with his or her correct name and address.

(2) A person who contravenes subsection (1) commits an offence.

(3) A person who contravenes subsection (1) and remains on or in the premises commits an offence.

Section 5 of the Offence Act

9.1

Section 5 of the Offence Act does not apply to this Act or the regulations.

Section 10 is amended

(

a) by repealing subsections (1) and (2) and substituting the following:

(1) In this section, "peace officer" means a peace officer described in paragraph (

c) of the definition of "peace officer" in

section 29 of the

Interpretation Act and includes a conservation officer as defined in

section 1 (1) of the Environmental Management Act .

(2) A peace officer may arrest without warrant any person found on or in premises if the peace officer believes on reasonable and probable grounds that the person is committing an offence under

section 4 in relation to the premises. , and

(

b) in subsection (3) by striking out " contravened

section 7 " and substituting " committed an offence under

section 4 " and by striking out " enclosed land, " and substituting " premises, ".

7 Sections 11 to 14 are repealed and the following substituted:

Court may order compensation

(1) The Provincial Court, on application of an occupier of premises or another person injured, may order a person convicted of an offence under

section 4 or 5 (7) in relation to those premises to pay restitution for the damage or loss that was sustained by the occupier or other person as a result of the commission of the offence.

(2) If an order is made against a defendant under subsection (1), no action for damage for trespass lies against the defendant for the loss or damage of the occupier or other person sustained as a result of the commission of the offence.

8 The Supplement to the Trespass Act is repealed.

Land Surveyors Act

9 The Land Surveyors Act, R.S.B.C. 1996, c. 248, is amended by adding the following sections:

Land surveyors entitled to enter land

59.1

(1) A practising land surveyor engaged in the practice of land surveying, or a person performing, for a practising land surveyor, duties in relation to the practice of land surveying, must be permitted to pass over any land without hindrance from any person.

(2) On the request of an occupier of land or a person authorized by an occupier of land,

(

a) a practising land surveyor entering or on the land must show identification and proof that he or she is registered with the corporation as a practising land surveyor, and

(

b) a person entering or on the land and performing, for a practising land surveyor, duties in relation to the practice of land surveying must show identification and proof that he or she is acting for a practising land surveyor.

(3) Subsection (1) ceases to apply to a practising land surveyor, or to a person performing, for a practising land surveyor, duties in relation to the practice of land surveying, who fails or refuses to comply with subsection (2).

Penalty for refusing access to land surveyor

59.2 A person commits an offence who

(

a) refuses to permit a practising land surveyor engaged in the practice of land surveying, or a person performing, for a practising land surveyor, duties in relation to the practice of land surveying, to pass over any land, or

(

b) interferes with a practising land surveyor engaged in the practice of land surveying or with a person performing, for a practising land surveyor, duties in relation to the practice of land surveying.

Damage by land surveyor

59.3 If a practising land surveyor or a person performing, for a practising land surveyor, duties in relation to the practice of land surveying causes damage on land, a court of competent jurisdiction, on application of an owner or occupier of the land or another person injured, may order the land surveyor to pay compensation to the owner, occupier or other person for his or her damages.

Section 59.1 (2) (

a) is amended by striking out " corporation " and substituting " association ".

Commencement

11 This Act comes into force by regulation of the Lieutenant Governor in Council.

Explanatory Notes

SECTION 1: [Trespass Act,

section 1]

re-enacts the definition of "owner" to limit the requirement in

section 3 of the Act to build and maintain lawful fences in rural areas to the fee simple owner of real property;

enacts a definition of "occupier" in relation to premises and a definition of "authorized person" in relation to an occupier;

enacts a definition of "premises" to extend the protections provided by the Act to property other than real property;

enacts a definition of "vehicle".

SECTION 2: [Trespass Act, sections 4 and 4.1]

establishes as offences;

entering premises when entry is prohibited;

engaging in an activity on or in premises when the activity is prohibited;

not leaving premises when directed to do so, not stopping an activity on or in premises when directed to do so, re-entering premises after being directed to leave or resuming an activity on or in premises after being directed to stop the activity;

establishes consent or other lawful authority and colour of right as defences to charges under

section 4.

SECTION 3: [Trespass Act,

section 5]

establishes methods of giving notice of enclosed land, prohibiting entry to premises and prohibiting an activity on premises;

establishes an offence of removing, altering or defacing a sign that gives notice for the purposes of the Act.

SECTION 4: [Trespass Act,

section 6] is consequential to the addition to the Act of new

offences.

SECTION 5: [Trespass Act, sections 7 to 9.1] repeals sections 7 to 9 and

re-enacts

section 8 to require that persons found on premises provide their name and address to the occupier or a person authorized by the occupier and provides that a failure to do so is an offence;

enacts

section 9.1 disapplying

section 5 of the Offence Act to the Act and regulations.

SECTION 6: [Trespass Act,

section 10]

re-enacts

section 10 (1) to include only police and conservation officers;

makes amendments consequential to adding new offences.

SECTION 7: [Trespass Act, sections 11 to 14] re-enacts

section 11 to update its language

and repeals sections 12 to14 which are being moved to the Land Surveyors Act .

SECTION 8: [Supplement to the Trespass Act] repeals an obsolete not-in-force amendment.

Land Surveyors Act

SECTION 9: [Land Surveyors Act, sections 59.1 to 59.3]

enacts

section 59.1 to move, from the Trespass Act to the Land Surveyors Act , the lawful authority for a land surveyor or a land surveyor's assistant to enter any land and adds a requirement for a land surveyor or a land surveyor's assistant entering land to show identification on request;

enacts

section 59.2 to move the offence of interfering with a land surveyor or an assistant in the course of land surveying to the Land Surveyors Act and omits an obsolete penalty;

enacts

section 59.3 to establish a cause of action for damage caused by a land surveyor or a land surveyor's assistant lawfully entering land.

SECTION 10: [Land Surveyors Act,

section 59.1] is consequential to the name change on

January 21, 2005 from the Corporation of Land Surveyors of the Province of

British Columbia to the Association of British Columbia Land Surveyors.

Copyright

© 2004: Queen's Printer, Victoria, British Columbia, Canada