Charter Violations & TPA Misuse
The Misuse of Trespass to Property Act and Charter of Rights Violations
Preamble
For decades pre pandemic and now, ‘post’ pandemic, Canadian advocates for seniors and disabled persons living in care facilities were/are trespasse, or threatened with trespass for “asking too many questions“ or for raising concerns about poor care of their loved ones.
In multi occupancy residential facilities like apartment buildings, operators of multi residential occupancy care facilities for seniors and for disabled persons are unlawfully misusing the Trespass to Property Act (TPA) to remove advocates. Advocates voicing concerns similar to the abhorrent poor care reported in the pandemic military report.
The TPA is well written and well adjudicated, it requires no amendments or special interpretation.
Social Justice Tribunal, Ontario Courts and Supreme Court of Canada have without exception ruled that a person with legally conferred authority (Power of Attorney, Legal Guardian, etc) or the invited guest of the ‘occupier’, can not be trespassed.
The TPA defines the ‘occupier’ as the person in physical possession of the property. In multi residential occupancy facilities, there are many physical possession occupiers.
Trespass is probably among the oldest of tort laws dealing with the processor's authority to grant egress and exit to the property they occupy. The Law of Torts in Canada, 3rd Ed., by G.H.L. Fridman, Q.C., F.R.S.C., (Toronto: Carswell, 2010) at p 21. Professor Fridman describes trespass as “an unjustified and direct interference by force with another’s land, person or goods,” (p. 21). The essence of trespass to land is “an unjustifiable interference with possession” of land (p.41).
Unfortunately, police administration of the TPA is not aligned with TPA jurisprudence and this in itself engages scrutiny under the Charter.
Section 26 of the Charter provides broader grounds for interpretation of Charter. The unlawful misuse of Trespass
in multi occupancy residential facilities in Canada merits scrutiny pursuant to Charter.
Section 32 (1) Actors of the State
Parliament and the “provincial legislatures are expressly named in section 32(1) and therefore the Charter applies to the legislation they enact (R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at para 34). The TPA is legislation enacted by provinces and in compliance with Charter. Police enforcement is not in line with the intent of the legislation or the judiciary rulings of the legislation.
The Charter applies to municipalities and their actions (Godbout v. Longueuil (City), [1997] 3 S.C.R. 844) “Police services are government institutions that exercise statutory authority.”
In Part 2 of this document, in the section on NON-GOVERNMENT BODIES CARRYING OUT GOVERNMENT ACTIONS discussion focuses on s. 32(1) and the broader interpretation by our Courts to include non-government entities carrying out government functions.
Godbout v Longueuil (City), 1997 CanLII 335 (SCC), [1997] 3 SCR 844, explains the rationale for the broad reach of section 32 as follows:
- Were the Charter to apply only to those bodies that are institutionally part of government but not to those that are - as a simple matter of fact - governmental in nature (or performing a governmental act), the federal government and the provinces could easily shirk their Charter obligations by conferring certain of their powers on other entities and having those entities carry out what are, in reality, governmental activities or policies.
Compelling arguments exist that the unlawful misuse of the TPA is a breach of Canadian Charter of Rights and Freedoms, s. 7, s. 9, s. 12 and s. 32 (1).
The Supreme Court of Canada has provided broader interpretations of the Charter rights to life and liberty. In Blencoe vs British Columbia the SCC extended the right to liberty to include the right to make important personal choices.
In R. v. Clay, the SCC explained that the ability to make personal choices "touches the core of what it means to be an autonomous human being blessed with dignity and independence in matters that can be characterized as fundamentally or inherently personal.”
The Canadian Bill of Rights section 1(a) protects a limited right not to be deprived of the enjoyment of property without due process. Similar to s.9 of the Charter, Section 2 (a) states, no law of Canada shall be construed or applied so as to authorize or effect the arbitrary detention, imprisonment or exile of any person.
Section 2(b) of the Bill, like s. 7 of the Charter, includes a provision prohibiting grossly disproportionate limitations of the right to life, liberty and security of the person.
(seniors, disabled persons and unlawfully trespassed individuals are exiled from one and other, and many times, for life).
Solution
Resolution to this long standing misuse of the Act and its concomitant Charter of Rights and Freedoms violations can be addressed: provide mandatory training to law enforcement officers pursuant to the interpretation and application of our courts’ rulings regarding the TPA.
Proper police TPA training pursuant to Courts’ rulings would also prevent SCC rulings of evidence excluded or charges of assault on police dropped due to police being trespassers themselves.
It may also prevent police liability since Courts have ruled ignorance of Charter not an excuse for police.
TPA misuse in seniors and disabled persons’ care facilities does not reflect Charter rights and values.
Part (1) of this paper will provide an overview of the TPA and definition of ‘occupier’ of property.
Part (2) will provide compelling arguments regarding Charter violations committed with the unlawful misuse of the TPA.
The paper in its entirety will hopefully confirm the need for additional police TPA training so that enforcement is in alignment with Canada’s judicial interpretation of the term ‘occupier’.
(1) History of Property Possession and Trespass
‘This element of damages seems to have been the chief invigorating force behind the origin and development of trespass’ Origins of the Action of Trespass. Trespass law has been considered the foundation of the law of torts. Intrusion of private property gave the owner the opportunity for monetary compensation. Over the centuries, the complexities of property rights evolved.
Feudal System and land tenure. It would appear the feudal system was the beginnings of landlord and tenancy. Land ownership by peasants was not the norm. During feudal times, 80-90% of the population worked on farms while 10% lived in cities. Peasants farmed land that they leased from Lords, Lords were the few that could afford deed land ownership. Land that was occupied by tenants of the Lord, was property of the tenant for the duration of the tenancy. The occupying tenant had possessory ownership and hence authority to restrict entry to the land. Ontario Court rulings are in agreement :
Laurier Homes (27) Ltd. v. Brett, 2005 (ON SC) [32] It is perhaps an underappreciated fact that a landlord’s interest is non-possessory. When an owner of land leases his or her land, the owner has a reversionary interest and not a right to possession during the term of the lease.
Giouroukos v. Cadillac Fairview Corp. Ltd. et al., (ON CA) [33] So long as the lease continues in effect, possession is vested in the tenant who, as a normal consequence of the landlord-tenant relationship, has control over and the power to exclude others from the leased property. The landlord's interest is non-possessory and remains so until the lease is terminated...
Trespass law has historically been purposive, it protected the property rights of the 80-90% of peasant farmers against unauthorized intrusion onto the land they leased and occupied. Possession was still 9/10 of the law even back then.
Hence the origins of physical possession and occupier rights, not deed ownership, determining who had the authority to grant egress to land.
Entick v. Carrington (1765), 19 St. Tr. 1029, 1 Wils. K.B. 275, Lord Camden prefaced his discussion of the rights in the case before him by saying, at p. 1066 [19 St. Tr. 1029]:
The great end, for which men entered into society, was to preserve their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.
The defendants argued that their oaths as King’s messengers required them to conduct the search in question and ought to prevail over the plaintiff’s property rights. Lord Camden rejected this contention, at p. 291 [1 Wils. K.B. 275]: our law holds the property of every man so sacred, that no man can set his foot upon his neighbor's close without his leave: if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbor's ground, he must justify it by law.
The reference to ...tread upon his neighbor's ground, he must justify by law...is still part of today’s TPA. A person with legally conferred authority can not be trespassed.
The above are excerpts are used in current day decisions Hunter et al. v. Southam Inc., 1984 CanLII 33 (SCC)
Trespass to Property Act in Current Times
In R. v. Aguirre, 2006 CanLII 45694 (ON SC) at para 197:
- While dictionary definitions of ‘trespasser’ include notions of one who makes an “unlawful or unwarrantable intrusion” on or upon land (The Concise Oxford Dictionary) or who makes “an unwanted or uninvited incursion” on the property of another (Webster’s Ninth New Collegiate Dictionary), the police are authorized to enforce, not general or tortious trespass concepts, but trespass in the narrow and technical terms defined by the Act. In other words, “The Trespass to Property Act relates to a highly specific and limited offence”: R. v. Asante-Mensah (2001), 2003 SCC 38 (CanLII), 157 C.C.C. (3d) 481 (Ont. C.A.) at p. 508 (aff’d (2003), 174 C.C.C. (3d) 481 (S.C.C.)).
In Canada, all provinces have a trespass law which is a well written and well adjudicated Act. The trespass laws are historical and purposive: trespass laws protect ‘occupier’ property rights.
Trespass is probably among the oldest of tort laws dealing with the processor's authority to grant egress and exit to the property they occupy. The Law of Torts in Canada, 3rd Ed., by G.H.L. Fridman, Q.C., F.R.S.C., (Toronto: Carswell, 2010) at p 21. Professor Fridman describes trespass as “an unjustified and direct interference by force with another’s land, person or goods,” (p. 21). The essence of trespass to land is “an unjustifiable interference with possession” of land (p.41).
In R v Asante-Mensah, 2003 SCC 38, (30) ...a discussion paper produced in 1979, the Ontario Ministry of the Attorney General argued that the purpose of the TPA was to provide a relatively quick, cheap and intelligible remedy for trespass: Discussion Paper on Occupiers’ Liability and Trespass to Property (1979), at p. 13 (“1979 Discussion Paper”).
The TPA, it was noted, did not replace the common law remedies, but gave occupiers additional rights: 1979 Discussion Paper, at p. 13; R. v. Page, [1964] O.J. No. 383 (QL) (H.C.), at para. 6 (“[t]he Petty Trespass Act. . . is a very old statute which gives the occupiers of premises certain additional rights to those enjoyed at common law”).
In R. v. Le, 2019 SCC 34, the Supreme Court of Canada, similar to to other cases on TPA, interpreted and ruled on the common thread in all provincial TPAs:
- that the "occupier" (the person in physical possession) is the only person with authority to invoke a trespass order; and
- a person with legally conferred authority is not a trespasser.
In R. v. Le 2019 SCC 34, the sacrosanct authority of the ‘occupier’ was demonstrated when the police themselves were considered trespassers when they were not the invited guest of the occupier. Charter rights violations occurred and the evidence obtained by trespassers (police) was considered inadmissible.
Similarly, in R. v. Lauda, and R. v. Kokesch, 1990 CanLII 55 (SCC) it was ruled police were unlawfully trespassing on private property. As trespassers, their presence on the property constituted a violation of the appellant's s. 8 Charter rights. The evidence gathered by police trespassers was ruled inadmissible.
In Chung and McGrath v. Toronto Police Service, 2010 (ONCPC) Officers were found to have committed trespass. They engaged in police misconduct that would bring discredit to the reputation of the service. Police officers entered a tenant's residence (occupier) without invitation of tenant or legally conferred authority, homeowner was present with police. Officers did not leave when asked to do so by the occupier. The Tribunal decision emphasized that the public reasonably expects police officers to respect and apply the well-established laws governing (police) entry into private residences. It is not a stretch to assume that the public expects officers to also know the sole authority vested in the occupier to invoke trespass and not the landlord.
Thus, pursuant to the SCC interpretation of the TPA, a person who is invited unto the property of the ‘occupier’ or a person with legally conferred authority is not a trespasser. (See attached document for additional sample of Ontario Courts and SCC rulings)
It is noteworthy that nowhere in the TPA is there any reference to behavior (aggressive or disruptive) being a grounds for trespass. Courts have ruled that behavior is not a grounds for trespass, Gentles v. Intelligarde International Incorporated, 2010 ONCA.
There are other more appropriate remedies for charging individuals for behavior that is aggressive, intimidating, disturbing, etc.
Section 175 (1) of the Criminal Code of Canada addresses disturbance of the peace and interfering with enjoyment of property falls under Section 430 (1) (d). A Peace Bond is another remedy option.
To what benefit is the TPA unlawfully misused?
Pre pandemic and ‘post’ pandemic, both private and government operated seniors and disabled persons care home operators, either due to ignorance of the law or wilful exploitation of police training limitations, are unlawfully misusing the TPA: Trespassed for asking too many questions.
The TPA is intentionally misused by care facility operators to silence advocates reporting poor care of their loved ones. The same atrocious and negligent care exposed by our military in Ontario during the pandemic.
It is mandatory to report abuse or suspected seniors’ abuse. Unlike the military, unlawful trespass and civil liberty restrictions are the consequences when the public is fulfilling their legal obligation and reporting abuse.
Trespass one advocate, silence and instill fear in seniors, disabled and all other advocates in the facility. Weaponizing the TPA is a cost effective way to ensure compliance with silence.
Prevalence of unlawful TPA misuse : according to Jane Meadus, lawyer at Advocacy Centre for the Elderly (ACE) in Toronto, they receive 1-2 calls per week.
https://www.youtube.com/watch?v=aIepMAs8m2Q
Add to ACE calls, the close to hundred individuals that have reached out to me, that reach out to MPP offices, that remain fearfully silent and we have an egregious situation that must be addressed. There have been some media reports on the cross Canada misuse of TPA (during non pandemic outbreaks), but media covers perhaps 20% of occurrences.
When police are involved, the majority of the trespassed individuals are too afraid of reporting and escalating the matter for fear or reprisal from police, facility operators and others.
https://www.reddeeradvocate.com/uncategorized/long-term-care-visitation-ban-astonishing-towle/
The alleged reasons facility operators provide to unlawfully trespass advocates appears to be a shared script used in defense of their own possibly illegal actions. The script includes: the person issued trespass has been engaging in long standing disruption of the peace, and behaving in a threatening manner toward staff and residents. No evidence is offered to the police (nor requested by the police) or to the lawyers demanding evidence on the behalf of those attempting legal restitution of their rights.
Due to costs for engaging a lawyer and the public’s lack of knowledge of the TPA, the trespassed individual has their freedom of rights and movement restricted forever. The senior or disabled person has their freedom of choice permanently infringed.
And yet, nowhere in the TPA is behavior a grounds for trespass: Gentles v. Intelligarde International Incorporated, 2010 ONCA
[64] Nor can the escalation of vulgarity and aggressiveness attributed to Gentles and Francis contribute to the required reasonable grounds (for trespass). .... the one thing the security guards did have a reasonable basis to believe, having encountered vulgarity and belligerence upon first “questioning” the appellants, was that they would encounter more vulgarity and belligerence.
Facility operators demand police charge the alleged dangerous and peace disturbing individual with trespass. Trespass is a misdemeanor offense and disturbance of the peace and threatening behavior is a summary offense.
As mentioned, the alleged behavior falls under Section 175 (1) or Mischief Section 430 (1) (d) of the Criminal Code and police should be charging accordingly. Thankfully, proof will have to be provided for the individual to be charged and an independent judge makes the decision.
Unlawful Trespass: Criminal Code Misconduct and Charter of Rights Violations
It is not a stretch to argue that the issuance of a threat or unlawful trespass charge by the facility operator, who is not the occupier pursuant to TPA definition, is engaging in s.7 s.9 and s. 12 Canadian Charter of Rights violations, and Criminal Code Misconduct:
- Harassment 264
- Mischief 430
- Intimidation 423
Canadian law enforcement officers are being placed in situations where they become complicit in breaching Charter Rights and community values of safety and sanctity within the ‘occupiers’ home. The notion that “the house of everyone is to him as his castle and fortress” (Semayne’s Case, [1558-1774] All E.R. Rep. 62
(1604), at 63).
If incursions are to be made upon cherished values entrenched in existing laws and Charter of RIghts protecting our society and the sanctity of their home, then it is for Parliament to do so and not for the police and entities such as seniors and disabled persons care facilities operators.
During a pre pandemic Ontario wide roundtable discussion on unlawful misuse of TPA hosted by MPP Joel Harden, participants expressed shock and an overwhelming consensus of abhorrence to hear that families were trespassed for life and not afforded the dignity to see their loved one until after death. It is egregious that a senior should die in isolation during non pandemic times.
Bracken v. Fort Erie (Town), 2017 ONCA ruled that trespass for ‘one year’ was far in excess of whatever immediate threat, real or imagined, the notice was intended to ameliorate. Trespass for life from seniors and disabled persons care facilities is inhumane.
Our seniors and disabled are disadvantaged via mental ability or fear and can’t speak out on their own behalf. Their advocates should not be unlawfully punished for protecting them. The remedy is simple enough - provide mandatory training and awareness of provincial and SCC rulings re: TPA occupiers’ rights and persons with legally conferred authority be provided to law enforcement across Canada.
In addition, and as a security measure and deterrent, Parliament should criminalize the wanton unlawful misuse of the TPA and preserve society's interests and Charter Rights.
It does not serve society to have to have the vulnerable live in fear, stripped of their rights and dignity in living and dying. Many pre pandemic have died alone and without their loved one due to trespass. A shameful mark on society.
Advocates of seniors and disabled are the watchdogs, the eyes and ears in care facilities and the voice of seniors and disabled persons. Awaiting another pandemic so our military can expose what we as advocates speak out about, and get punished for doing so, is not an option. Our seniors don’t have that kind of time.
(2) Charter Violation with Unlawful Misuse of TPA
Section 7 of the Canadian Charter of Rights and Freedoms
protects every individual’s right to “life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the “principles of fundamental justice”.
In R. v. White, the SCC set out a three-stage inquiry that every court must follow to determine whether a breach of s. 7 has occurred. The first stage asks whether there exists a real or imminent deprivation of life, liberty, security of the person (or any combination of the three). Misuse of the TPA results in total deprivation of the seniors and their family members' liberties.
Charter s. 7 rights to life and liberty: in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, para (51) we see the the right to liberty to include the right to make important personal choices. The senior and disabled person has a right to choose their visitor and in the event of mental incapacity, the right to have their chosen POA/SDM or Guardian fulfill their legal duty for their care.
In R. v. Clay, 2003 SCC explained that the ability to make personal choices "touches the core of what it means to be an autonomous human being blessed with dignity and independence in matters that can be characterized as fundamentally or inherently personal.”
Seniors and disabled children living in care facilities, as well as family and friends, are deprived of liberty, freedom of movement, personal choices and autonomy when the TPA is not enforced pursuant to judicial interpretation and rulings.
If the law is written well but it's not being acted upon/exercised appropriately or the power it confers is being misused, the entity that is exercising the power is the one who has breached the Charter and liable for damages 24(1).
The TPA is an example of a well written law that is not being exercised appropriately.
Section 7 of the Charter....”Vagueness offends the principles of fundamental justice where the law, considered in its full interpretative context, is so lacking in precision that it does not provide sufficient guidance for legal debate as to the scope of prohibited conduct or of an “area of risk” (R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606 at 626-627 and 643; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1028 at 1070-72; R. v. Levkovic, [2013] 2 S.C.R. 204 at paragraphs 47-48).
The Trespass Act is not a vague law, it is a law with vague enforcement.
“The fact that [a] matter is complex, contentious or laden with social values does not mean that the courts can abdicate the responsibility vested in them by the Constitution to review legislation for Charter compliance when citizens challenge it” (Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791 at paragraph 107).
Section 9 of the Canadian Charter of Rights and Freedoms
Section 9 of the Charter protects against arbitrary detention and if we invoke s. 26 of the Charter which provides for broader grounds for interpretation, s.9 and its application to TPA misuse aligns quite well.
“Detention requires some form of physical or psychological restraint by the state. It has been defined as “a suspension of the individual’s liberty interest by a significant physical or psychological restraint” (R. v. Grant, [2009] 2 S.C.R. 353 at paragraph 44). See also the discussion of detention in Section 10 – General.”
In Blencoe vs British Columbia, s. 7’s protection of the “psychological integrity” of a human being protects against significant government-inflicted harm (often in the form of stress) to the mental state of the individual. (Seniors and trespassed family are stressed and feel helpless, isolated and fearful when their rights are arbitrarily infringed. Trespassed family members have reported PTSD and anxiety related to financial hardship (legal fees if they engage in the prosecutorial process).
A psychological detention reasonably occurs when the nature of police conduct, including language and appearance (in full uniform with weapon) lead a reasonable person to conclude they have no choice but to comply with the direction of the state (police) or entity that has called the police.
“The nature of any police intrusion into a home or backyard is reasonably experienced as more forceful, coercive and threatening than when similar state action occurs in public ( R. v. Le [2019] 2 S.C.R. 692 at paragraph 51).
When police officers, in full uniform, enter a senior’s home and ask the senior’s family member to leave or be arrested for trespass, the sense of sanctity and safety in their home is extinguished.
“While the overall duration of an encounter may contribute to the conclusion that a detention has occurred, a detention, even a psychological one, can occur within a matter of seconds, based on a single forceful act or word (Grant, supra at paragraph 42; Le, supra at paragraphs 65-68).”
The general public assumes law enforcement officers know the TPA and when an individual is told to leave their loved ones’ home or be arrested for trespass, it is perceived as an imminent threat to their freedom. There is an element of authority attributed to an officer and an automatic sense of duty to comply with their direction.
Advocates have expressed fear of being charged with trespass and having a criminal record. They are not aware that trespass is a misdemeanor offense (before midnight) and only if they don’t have legally conferred authority or they are not the invited guest of the occupier.
The unlawfully trespassed individual is left in psychological turmoil especially if their loved one has a deteriorating mental disease and/or is hearing disabled or is non verbal and can’t communicate by phone. Communication is effectively cut off in addition to their ability to see and touch their loved one. Physical and mental well being relies on all components of human interaction as we learned during the pandemic lockdowns.
An unlawful detention (i.e., detention or imprisonment that is not authorized by statute or common law) is always arbitrary and unjustifiably limits section 9 of the Charter (Grant, supra at paragraphs 54-55, 57). The deteriorating senior or disabled child in a group home is arbitrarily detained inside the home and the family member is indefinitely and arbitrarily detained outside the home.
The unlawful misuse of the TPA by facility operators and peace officers on the basis of an alleged danger an individual presents to other occupiers and staff will be arbitrary if there is no evidence provided, criteria or standards in place to determine if they are in fact dangerous.
If the individual is truly dangerous, charge accordingly with Section 175(1) or Section 430 (1) (d) of the Criminal Code. Fortunately with this charge proof of dangerous behavior is mandatory.
When an individual is taken out of the normal course of freedoms to come and go as they please, like others in society, and forced to submit to unlawful restrictions on their choices and movements, that person’s Charter rights are infringed.
When a peace officer is issuing directions to an individual to leave their loved ones’ home or be arrested, the individual is clearly subject to external restraint. The officer has assumed control over the individual's liberties and movements by making a demand which had “perceived '' significant legal consequences. A law abiding reasonable person does not dare obstruct an officer in the execution of their duty.
In the case of seniors, the chronological clock is ticking. With many seniors, the clock on their mental ability to communicate and recognize their loved ones is ticking faster.
The psychological impact of that knowledge is devastating to all involved. To be refused access to a senior until after their death is psychologically debilitating and society has expressed abhorrence.
Section 12 of the Canadian Charter of Rights and Freedoms
Section 12 “ prohibits the imposition of certain treatments or punishments, through a contextual assessment of “the effect that the [treatment or] punishment may have on the person on whom it is imposed ”balanced against the objective for that treatment or punishment.”
Section 12 prohibits treatment or punishment that is “grossly disproportionate” in the circumstances; in other words, one that would “outrage our society’s sense of decency” such that Canadians would find it “abhorrent or intolerable”.
In Bracken v. Fort Erie (Town), 2017 ONCA, the judge considered a one year trespass from public premises unreasonable. Surely unlawful trespass for years, or life, from a loved one's ‘home’ falls within the parameters of abhorrent, intolerable and indecency.
Section 26 of the Charter provides for a broader interpretation of Charter s. 12.
Section 7 of the Charter includes a related principle, prohibiting grossly disproportionate limitations of the right to life, liberty and security of the person.
The Supreme Court has not articulated a general definition of “treatment”.
The Supreme Court has noted the broad dictionary definition of treatment as “a process or manner of behaving towards or dealing with a person or thing...” (Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711 at paragraph 29).
The Supreme Court has left open the possibility that treatment may include measures imposed by the state outside of the penal or quasi-penal context.
According to the Supreme Court, “there must be some more active state process in operation, involving an exercise of state control over the individual, in order for the state action in question, whether it be positive action, inaction or prohibition, to constitute ‘treatment’ under section 12 (Rodriguez v. British Columbia (Attorney General), [1993] 3 S.C.R. 519 at 610.
State control via police and entities demanding unlawful misuse of trespass (prohibition of lawful visits in care facilities) on an individual's freedom of movement, liberty and choice constitutes a cruel treatment. Charter rights are infringed without due process.
For section 12 to be engaged, the impugned measure must be a “treatment or punishment” by a Canadian state actor.
Section 32 (1) Actors of the State
Parliament” and the “provincial legislatures” are expressly named in section 32(1) and therefore the Charter applies to the legislation they enact (R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 at para 34).
The Charter applies to municipalities and their actions (Godbout v. Longueuil (City), [1997] 3 S.C.R. 844) “Police services are government institutions that exercise statutory authority.”
Provincial legislature and municipalities are duty bound to ensure trespass laws are administered pursuant to higher courts’ rulings on trespass. They have authority to implement police training and ensure that TPA administration is in step with upper courts’ rulings and Charter rights. Inaction by the state actors implies complicitness to Charter violations.
The Charter also applies to regulations, by-laws, orders, directives, rules, etc. that are adopted pursuant to legislation (Dolphin Delivery, supra, at paragraph 39: Eldridge v. British Columbia (Attorney General), [1997] 3 S.C.R. 624,at para 21.
Police services are government institutions that exercise statutory authority.
Given that the laws enacted by the ON legislature must be in compliance with the Charter, then the unanimous vote of the legislative assembly re: Motion 129-Voul's Law which aligns the proper enforcement of the Trespass to Property Act (TPA) with the Charter of Rights, must be implemented.
Ford must provide direction to seniors and disabled care facilities’ operators that the TPA does not permit the trespass of advocates.
The actions of government officials qua government officials are subject to the Charter. Ministers and government officials acting pursuant to legislative authority are subject to the Charter (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038 at 1078; McKinney, supra, at 264-5).
The unlawful misuse of trespass imposes grossly arbitrary limitations on the rights and freedoms of near end of life seniors and highly family dependent seniors and disabled.
The lack of compassion and high handed deliberate disregard for the psychological impact by care facility operators and state on seniors when their family is barred from seeing them causes “outrage in our society’s sense of decency” such that Canadians would find it “abhorrent or intolerable”.
Balancing the Safety of Residents and Staff in Care Facilities with Visitors’ Rights
Care facility operators have legal options and the authority to remove an individual that is causing a ‘disturbance of the peace’ or acting in a threatening or dangerous manner pursuant to Section 175(1) and Sectio 430 (1) (d) of the Canadian Criminal Code.
Fortunately, proof of the behavior will have to be provided in order for charges to be laid. Advocates trespassed pursuant to misuse of TPA would welcome the demand for proof that must be provided. It is common for trespassed advocates to repeatedly plead for evidence leading to their trespass and be denied such proof by the facility operator. Another example of Charter of Rights breach.
A Peace Bond is another option in the event an individual has experienced an “emotional outburst” due to circumstances that are a one-off.
It should be noted that contrary to misconception, the Occupational Health and Safety Act does not provide authority for trespass. Three reasons:
What the unlawful misuse of TPA means to Canadians
On October 16, 2019, the Ontario Provincial Court Justice withdrew the trespass charge against an advocate unlawfully charged with trespass (December 2018) for 316 days from her 96 year old mother’s care home. The mother was hearing impaired, recently diagnosed with dementia (December 2018) and had a rudimentary command of the English language. The hearing impairment resulted in a complete end to communication with the mother. Imagine being denied access to a loved one whose mental faculties are now deteriorating faster than their aging bodies.
The advocate had POA and was invited guest of senior/occupier. Cost for lawyer: $15,000.
Other trespassed advocates either lack financial ability or are fearful of retaliation against their loved one if they proceed with litigation even though their rights have been breached. Advocates are held hostage in their fear of retaliation by facility operators and for good reason.
Sample SCC and TPA rulings upholding the ‘occupiers’ authority
R. v. Le. 2019 (SCC)
https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/17804/index.do
The SCC has stated that even police are trespassers if they are not the invited guest of the occupant or enter the occupier home without legal authority (warrant).
R. v. Landry, 1986 (SCC)
https://www.canlii.org/en/ca/scc/doc/1986/1986canlii48/1986canlii48.html?searchUrlHash=AAAAAQAqdHJlc3Bhc3MgdG8gcHJvcGVydHksIHJlc2lkZW50aWFsIHByb3BlcnR5AAAAAAE&resultIndex=29
The conclusion, based on the existing law, that when officer Handy entered the home, the apartment, without permission and without a warrant, he was not in the execution of his duty. Landry (the occupier) was accordingly acquitted of the charge of assaulting a peace officer in the execution of his duty. (Take away: police become trespassers if they enter the property without permission of occupier or without legally conferred authority and their execution of duty is nullified once they are trespassers)
Canadian Pacific Railway Co. v. Vancouver (City) 2006 (SCC)
https://www.canlii.org/en/ca/scc/doc/2006/2006scc5/2006scc5.html?autocompleteStr=Canadian%20Pacific%20Railway%20v%20Va&autocompletePos=1
SCC understanding of property contained within Canadian Pacific Railway v Vancouver (City) is compatible with the existing jurisprudence on this topic: Thus the important property rights—according to the Court—are the right to exclude (trespass) and the right to the primary or historical use of the property. Notably, the Court seems to discount the idea that the right to set the agenda is essential to ownership, or even a property right at all.
(Take away: Care home facility operators set the agenda for care and other activities but that does not imply ownership (occupier) rights)
Eccles v. Bourque 1974 (SCC)
https://www.canlii.org/en/ca/scc/doc/1974/1974canlii191/1974canlii191.html?autocompleteStr=eccles%20v%20&autocompletePos=1#related
p. 742, was a claim in trespass... the question that arose was not if police had trespassed in the execution of their duties but "If they [the police constables] were authorized by law to commit a trespass while conducting their duty to make an arrest.
(Take away: The authority of the occupier’s property rights to exclude is sacrosanct)
R. v. Asante-Mensah (2003)
https://www.canlii.org/en/ca/scc/doc/2003/2003scc38/2003scc38.html
Justice Binnie cautiously upholds the arrest power under the TPA, and expressed concern about its potential for abuse.
The issue of TPA and excessive force including use of arrest come into question as many trespass matters are trivial in nature and can be dealt with by means other than an arrest.
(30) Justice also stated TPA provided additional property rights to occupiers.
(73) A certain amount of latitude is permitted to police officers who are under a duty to act and must often react in difficult and exigent circumstances. The same latitude will not necessarily be shown to an occupier who is under no duty to act and who instigates a confrontation with a trespasser.
(By extension, I add, no amount of latitude should be permitted to care facility operators, who are not occupiers pursuant to TPA and with no authority to issue trespass threat or call police to arrest invited guests of occupier or person with legally conferred authority to enter premises of occupier.)
Principles of Fundamental Justice and s. 7 Charter Rights
Principles of fundamental justice have been accepted by the Supreme Court in previous s. 7 cases, for example:
- Respect for human life: (unlawful TPA restrictions to visitors is not respecting life, especially those trespassed for life and not seeing loved one till after they died)
- The government should not engage in behavior that would “shock the conscience” of most Canadians: (UNIFOR, MPPs and Canadian general public have expressed disgust, shock and abhorrence when families have been trespassed from visiting senior and disabled children.
Particularly, when families have been denied access to their senior until after their death). - Human rights cannot be deprived in an arbitrary or unfair manner; (the TPA is well written across all provinces, state enforcement is not in alignment with jurisprudence)
- There must be a precision to law: (SCC rulings on TPA and many Ontario Court rulings have upheld that the TPA can only be invoked by occupier. Pursuant to TPA, a person with legally conferred authority (POA SDM) can not be trespassed. We need to achieve court ruling precision at the ground level of enforcement - the police).
- Vague laws do not permit fair notice to the person as to what is permitted or prohibited by the law, (Inconsistent enforcement of TPA makes it a vague law. Police interpret it one way and our courts interpret it another way. Facility operators demand police charge the alleged dangerous and peace disturbing individual with trespass. Trespass is a misdemeanor offense and disturbance of the peace and threatening behavior is a summary offense. A clear disconnect between the alleged crime and the punishment, and upper courts’ rulings.)
- Laws must not be grossly disproportionate to state interest (Seniors and disabled are in care homes for “care” not for unlawful deprivation of rights and state (police) sanctioned isolation from family - during non pandemic times)
- Laws must not be over-broad, and Administrative procedures in the justice system must be fair. (Fair, consistent judicial interpretation and application in rulings have been established by courts and SCC. Administration of the TPA by police, care facility operators pursuant to court rulings, must be aligned.)
The final stage of the R. v. White inquiry requires that the court determine whether the deprivation of life, liberty and/or security of the person has occurred in accordance with the relevant principle or principles of fundamental justice. (unlawful misuse of TPA, by state, (police) government and non government operated facilities is not pursuant to courts’ rulings including SCC, wantonly denies liberty, security and freedom of choice)
If it cannot be said to have occurred in accordance with the principles of fundamental justice, the court will find a breach of s. 7.
In R. v. Malmo Lavine, the SCC defined “principles of fundamental justice” as any “legal principle about which there is sufficient societal consensus that it is fundamental to the way in which the legal system should fairly operate.”
The court also stated that the principle must be “identified with sufficient precision to yield a manageable standard against which to measure deprivations of life, liberty, or security of the person.” (The courts’ interpretation and application of the TPA, has without exception, been consistent and in line with all provincial TPAs. A senior denied visits from family or family denied access to loved one prior to death due to unlawful TPA is demonstrable and the impact on society is palpable.)
NON-GOVERNMENT BODIES CARRYING OUT GOVERNMENT ACTIONS
Section 32(1) of the Charter provides that it applies to all matters within the authority of the Parliament and government of Canada, and within the authority of the legislature and government of each province.
In Greater Vancouver Transportation Authority v Canadian Federation of Students-British Columbia Component, 2009 SCC 31 [“GVTA”], “[o]n the face of [section 32(1)], the Charter applies not only to Parliament, the legislatures and the government themselves, but also to all matters within the authority of those entities”: para 14. Deschamps J. further explains the policy reasons for this approach, citing La Forest J. in Godbout v Longueuil (City), 1997 CanLII 335 (SCC), [1997] 3 SCR 844, where he explained the rationale for the broad reach of section 32 as follows:
- Were the Charter to apply only to those bodies that are institutionally part of government but not to those that are - as a simple matter of fact - governmental in nature (or performing a governmental act), the federal government and the provinces could easily shirk their Charter obligations by conferring certain of their powers on other entities and having those entities carry out what are, in reality, governmental activities or policies. In other words, Parliament, the provincial legislatures and the federal and provincial executives could simply create bodies distinct from themselves, vest those bodies with the power to perform governmental functions and, thereby, avoid the constraints imposed upon their activities through the operation of the Charter. Clearly, this course of action would indirectly narrow the ambit of protection afforded by the Charter in a manner that could hardly have been intended and with consequences that are, to say the least, undesirable. Indeed, in view of their fundamental importance, Charter rights must be safeguarded from possible attempts to narrow their scope unduly or to circumvent altogether the obligations they engender: para 48.
Pridgen v University of Calgary, 2012 ABCA 139, considered the application of section 32 of the Charter provided five categories:
- Legislative enactments;
- Government actors by nature;
- Government actors by virtue of legislative control;
- Bodies exercising statutory authority; and
- Non-governmental bodies implementing government objectives.
(See paras 78-98.)
[80] She noted that these categories of cases:
...illustrate the factors that may lead a court to classify an entity as “governmental”, either in and of itself or in some of its activities, for the purposes of section 32 of the Charter. This classification is neither exhaustive nor closed. Nor do the categories operate as independent silos; a particular entity or its activities may have elements of one or more of them: para 99.
[81] When an entity acts pursuant to statutory authority, the Charter applies whether the entity is part of the government, or subject to government control. The Charter may also apply to an entity when it engages in “government activity”. This is summarized in GVTA at para 16:
Thus, there are two ways to determine whether the Charter applies to an entity’s activities: by enquiring into the nature of the entity or by enquiring into the nature of its activities. If the entity is found to be “government”, either because of its very nature or because the government exercises substantial control over it, all its activities will be subject to the Charter. If an entity is not itself a government entity but nevertheless performs governmental activities, only those activities which can be said to be governmental in nature will be subject to the Charter.
Sometimes, an entity that appears to be private will be subject to the Charter because it is exercising a power given to it by the government, or it is implementing a government objective.
A non-government entity that implements a government objective will be subject to the Charter. For example, the Courts have held that a hospital is governed by the Charter when it was delivering medical services to the public, because this is implementing a government objective (health care). Like the law society example, the Charter will only apply to the hospital's public action. A hospital would not be governed by the Charter regarding purely private matters (for example, its creation of a retirement policy). (see: Pridgen v. University of Calgary, 2012 ABCA 139 (CanLII) at 78 - 99)
By extension, both government and non government operated care facilities are implementing government objectives of health care to seniors and disabled persons.
The TPA itself and a semi-public entity invoking it inappropriately would be subject to the Charter - not just the police. If the law is written well but it's not being acted upon/exercised appropriately or the power it confers is being misused, the entity that is exercising the power is the one who has breached the Charter and liable for damages 24(1).
If it's a piece of legislation that intrinsically violates the Charter-the courts decide on the remedy (striking down a section, reading in, sending it back to legislature) but no one entity is held to account as it is the legislature that enacted the law.
Unlawful Trespass: Power of Attorney and Legal Guardianship Charter Violations
Aside from the infringement of liberties of the occupant to have visitors of their choosing.....consideration needs to be given to the extent to which legally conferred authorities, such as guardianship of a minor or POA, are interfered with when unlawful trespass is utilized to limit rights of those seeking access to the grantor of their conferred authority.
A POAs legal obligation is obstructed if they are unlawfully detained outside of the facility of their grantor.
Conclusion : Misuse of Trespass to Property Act and Charter of Rights Infringements In every province across Canada, the TPA is well written and higher courts’ interpretations and applications have consistently upheld the right of the ‘occupier’ - which pursuant to the TPA is the person in physical possession of the property and not the ‘deed’ hold owner of the property.
Courts, without exception, have a fundamental role in upholding the law and protecting against the possibility of encroachment on our personal liberties; they are the protectors of our rights. Courts have a duty to uphold their own TPA jurisprudence; not doing so would “bring the administration of justice into disrepute.”
Parliament has the primary duty to respond to the challenge of criminal activities. The unlawful misuse of the TPA and its Charter rights violations upon those lacking the mental capacity and financial resources to demand their Charter rights can be deemed such a criminal activity.
Seemingly small restrictions on our freedoms, such as trespass from our loved ones’ homes by facility operators, who lack the authority to impose such restrictions and breach Charter protected freedoms of the senior/disabled person (occupier paying and occupying the space legally) accumulate and become bigger restrictions. They become unlawful criminal offenses.
Law enforcement by definition must enforce the law. To have vague and inconsistent enforcement of the TPA by officers erodes society's trust in the judicial process and the state’s abilities to protect our lawful rights.
The Canadian Charter of Rights and Freedoms clearly tells us that certain fundamental rights are the protected rights of all Canadians. By extension, this would imply, these rights are regardless of our mental capacity, financial situation or station in life. And yet, when our fundamental rights are violated by the state, we require mental capacity to understand our rights have been violated, we require financial resources to engage in legal proceedings to enforce our violated rights, and our station in life becomes a determinant of the likelihood of whether our entrenched rights will be breached. Minorities and disadvantaged are more likely to have their rights breached. Our station in life will also determine whether we have the financial resources to engage in the prosecutorial process.
To restrict legal entry into an occupier's private dwelling, requires reflection on the necessity of breaching such a fundamental tenet of our society as the sanctity of the home.
It also requires reflection for the egregious psychological impact when trespass is administered unlawfully, punitively and with complete disregard of the protections the trespass act judicially exploits when properly enforced.
The unlawful misuse of trespass imposes grossly arbitrary limitations on the rights and freedoms of near end of life seniors and highly dependent seniors and disabled.
The lack of compassion and high handed deliberate disregard for the psychological impact by care facility operators and state on seniors when their family is barred from seeing them causes “outrage in our society’s sense of decency” such that Canadians would find it “abhorrent or intolerable”
Trespassed individuals have reported PTSD symptoms during and long after their loved one has passed. When law enforcement does not enforce enshrined rights, individuals are left feeling helpless and fearful without protection of their state. Helplessness and fear are predisposing conditions of depression and concomitant PTSD.
Both private and government operated seniors and disabled persons care facility operators have been entrusted with the obligation to care for their dependent residents who are paying for their care and accommodation. These vulnerable residents have a reasonable expectation that the facility operator will comply with the Acts governing their licensing agreements in addition to respective state laws protecting their Charter rights.
To wantonly restrict entry to the private dwelling of seniors and disabled persons (occupiers) who lack the mental capacity, or financial resources to demand their rights demonstrates a complete and profound disregard for the well being of their vulnerable residents.
And, an equal disregard for the laws protecting their residents against such infringements of rights as denying access to people they love to enter their home.
Studies on pandemic related isolation demonstrated profound and irreparable damage to the well being of seniors in care facilities due to visitation restrictions. Lock downs were several weeks at times, and not for years or life as with TPA misuse.
https://www.thestar.com/opinion/contributors/2022/08/12/irreparable-harm-was-incurred-by-visitation-bans-in-long-term-care-homes-and-must-never-be-repeated.html
Other legal considerations of unlawful trespass is that it prohibits the legal responsibility of persons with legally conferred authority such as Power of Attorney, Substitute Decision Maker and Legal Guardian. Persons with legally conferred authority have a duty to their grantor or ward that is legally sanctioned.
Advocates, like the Charter, speak up for those that can’t, let's not silence their voices.