Legalese_09-43

Jeff Green | Oct 29, 2009

By Susan Irwin, Executive Director / Lawyer, Rural Legal Services

Next week the colour of choice for outdoor garb will be hunter orange, marking the opening of firearm season for deer in our community. During this period the sighting by property owners of an uninvited hunter or hunters on their land can often make them see “red”, not orange, as they protest the hunter’s “trespass”.

The act of going onto property owned by another person when you have no right or authority to do so, or refusing to leave such property when asked to go by the owner constitutes trespass. As allegations of trespass are one of the most frequent complaints made by property owners during deer hunting season, it seems timely to briefly review the law of trespass in this week’s column.

Before heading out to the watch, every hunter should be aware that it is a punishable offence under the Fish and Wildlife Conservation Act to ignore notices prohibiting hunting, or to contravene the Trespass to Property Act. The notices can be written, as in the case of signs, or simply oral if given by the owner or a person authorized by the owner (such as a tenant).

If asked to leave by the owner, or any person who might reasonably be authorized by the owner, the hunter should do so immediately. It doesn’t matter that the property wasn’t fenced or posted with “No Trespassing” signs.

The law doesn’t always require that the owner of property take action, such as posting signs, to stop trespassers. The law assumes that whether or not there are any signs, simple common sense and courtesy apply.

A fence, for instance, is a pretty good indication that a landowner intends to keep strangers off the property. Where property is enclosed, or where the land is a garden, an orchard, a woodlot on lands used primarily for agriculture, a reforestation area where the trees are under about 2 metres in height, or just generally an area that appears to be under cultivation, you cannot enter without permission whether or not any signs or notices have been posted.

The Trespass to Property Act also provides landowners with several ways to let people know that they are not to enter onto their property, if it is not otherwise implicit. An oral notice, by simply telling somebody, is good notice, as is a letter or note.

The more common sort of notice against trespassing is a sign. The signs must clearly prohibit entry, with something as simple as “Keep Out” being satisfactory. The signs must be clearly visible in daylight and people should be able to see them as they approach the usual places of entry to the land, such as laneways or gates.

A red marking, at least four inches (10 cm) in diameter, has the same meaning as a “No Trespassing” sign. The markings don’t have to be round and can really be any shape, providing they are red and a four-inch circle could fit in the middle. The markings can be on trees, rocks, fence posts or anything else that allows them to be seen, and they can be painted or made out of other materials.

Again, if you are asked to leave, it is an offence under the Trespass to Property Act to refuse to go immediately, whether or not the property was posted. Don’t argue, just leave.

If you are a property owner and find trespassers, you may ask them to leave. If they refuse to go, don’t get into an argument, simply return to your home and call the police or, if they are hunters, you may also call the Ministry of Natural Resources. If you cannot identify the trespassers, you may be able to obtain a licence number from their ATV or other vehicle.

Under no circumstances should you threaten or use force to attempt to convince people who are trespassing to leave. Pointing a weapon at a person is a criminal offence and is far more serious than a charge of trespassing.

An individual convicted of trespassing may be fined up to $2,000 under the Trespass to Property Act and ordered to pay for any damage to the property. A trespassing hunter may also be fined up to $25,000 under the Fish and Wildlife Conservation Act and may be prohibited from hunting for a period of time.

Landowners should consider posting or marking their property if they don’t wish to have hunters on their land, but hunters should take seriously their responsibility to make certain that they have permission to hunt on land that is not their own.