Acts and Regulations

2012, c.117 - Trespass Act

Full text
Current to 13 December 2023
2012, c.117
Trespass Act
Deposited December 13, 2012
Definitions
1The following definitions apply in this Act.
“authorized person” means an occupier or owner of a premises and an agent of the occupier or owner.(personne autorisée)
“driver” means a person who drives or has care or control of a motor vehicle.(conducteur)
“forest land” means any land lying outside the boundaries of a city or town and not cultivated for agricultural purposes, on which trees, shrubs, plants or grass are growing, together with roads on the land, other than public highways, but does not include any lands referred to in subsection 5(1) or section 6.(terre forestière)
“freshwater marsh” means an inland area, lying between dry land and a lake, pond, river or stream, where the water table is ordinarily near or above the surface of the land and which is characterized by aquatic and grass-like vegetation.(marais d’eau douce)
“lake shore area” means that portion of land lying within 25 m above and 25 m below the normal high water mark of any lake, and includes any bed, bank, beach, shore, bar, flat, mudflat or sand dune associated with the lake whether or not it lies within that portion of land.(zone riveraine d’un lac)
“motor vehicle” means a motor vehicle, motor driven cycle, motorcycle or trail groomer as defined in the Motor Vehicle Act or an off-road vehicle as defined in the Off-Road Vehicle Act, and includes any trailer or accessory attached to the motor vehicle.(véhicule à moteur)
“normal high water mark” , in reference to a lake, means the visible point at which the long continued presence and action of water has differentiated the bed of the lake from the bank of the lake in terms of the nature of the vegetation and the soil found on each.(ligne normale des hautes eaux)
“occupier” , even though there may be more than one occupier of the same premises, means(occupant)
(a) a person who is in possession of premises,
(b) a person who has responsibility for and control over the condition of the premises or the activities engaged in on the premises or control over the persons allowed to enter the premises, or
(c) school personnel as defined in the Education Act.
“ocean shore area” means that portion of land lying within the ordinary low tide mark and 300 m above the ordinary high tide mark of any ocean or ocean inlet, and includes any bed, bank, beach, shore, bar, flat, mudflat or sand dune associated with the ocean or inlet whether or not it lies within that portion of land.(zone riveraine d’un océan)
“peace officer” means(agent de la paix)
(a) a member of the Royal Canadian Mounted Police,
(b) a police officer appointed under section 10, 11 or 17.3 of the Police Act,
(c) an auxiliary peace officer or an auxiliary police constable appointed under section 13 of the Police Act, when accompanied by or under the supervision of a police officer appointed under section 10, 11 or 17.3 of the Police Act or a member of the Royal Canadian Mounted Police, or
(d) a conservation officer appointed under the Fish and Wildlife Act.
“premises” means any building, structure or land.(lieux)
“saltwater marsh” means an area, lying between dry land and the ocean or an ocean inlet, that is covered all or part of the time by salt water and which is characterized by aquatic and grass-like vegetation.(marais d’eau salée)
“sand dune” means a natural mound of loose sand, which may be covered with grass or other vegetation, found along a lake or ocean shore.(dune)
“trespass” means entering or remaining without lawful authority on premises owned, occupied or controlled by another.(intrusion)
“watercourse” means the full length and width of any river, creek, stream, spring, brook, lake, pond, reservoir, canal, ditch or other natural or artificial channel that is open to the air and includes the bed, banks, sides and shoreline.(cours d’eau)
1983, c.T-11.2, s.1; 1985, c.70, s.1; 1985, c.A-7.11, s.42; 1988, c.67, s.12; 1989, c.42, s.1; 1996, c.18, s.11; 1997, c.42, s.10; 2003, c.7, s.41; 2004, c.12, s.55; 2020, c.16, s.4; 2023, c.34, s.1
Application
2(1)This Act does not apply to lands that are Crown Lands as defined in the Crown Lands and Forests Act except where the lands are referred to in subsection 5(1) or section 6.
2(2)This Act does not apply to any person who enters or remains on a premises under an Act of the Legislature or an Act of the Parliament of Canada.
1983, c.T-11.2, s.10; 1985, c.70, s.7; 1989, c.42, s.7; 2023, c.34, s.2
Trespass or prohibited activity on certain premises
2023, c.34, s.3
3(1)No person shall trespass by motor vehicle or other means or engage in an activity on the following premises if the person has had notice from an authorized person not to trespass or engage in the activity:
(a) the premises of a shop, store, shopping mall or shopping plaza;
(b) the premises of a school, vocational school, university, college, trade school or other premises used for educational purposes;
(c) the premises of a facility operated as a place of shelter from domestic violence; or
(d) any other premises except
(i) a premises referred to in subsection 4.1(1),
(ii) forest land, or
(iii) land referred to in subsection 5(1) or section 6.
3(2)For the purposes of subsection (1), notice may be given
(a) orally or in writing, or
(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.
3(3)A sign posted for the purposes of paragraph (2)(b) giving notice that trespass is prohibited shall bear the words “no trespassing” or words of similar effect, plainly visible and legible.
3(4)A sign posted for the purposes of paragraph (2)(b) giving notice that an activity is prohibited shall name the activity with an oblique line drawn through the name or show a graphic representation of the activity with an oblique line drawn through the graphic representation.
3(5)Notice given under this section shall be deemed to have been given by an authorized person until the contrary is proved.
3(6)Notice given under this section may relate to all or a part of the premises, and different notices may be given in relation to different parts of the premises.
1983, c.T-11.2, s.2; 1992, c.23, s.1; 2008, c.11, s.26; 2023, c.34, s.4
Exemption re trespass on premises
4Paragraphs 3(1)(a) and (b) do not apply to a person
(a) engaged in a peaceful public demonstration, or
(b) doing anything in connection with a lockout or strike that the person is permitted by law to do.
1986, c.81, s.1; 1992, c.23, s.1; 2008, c.11, s.26
Trespass or prohibited activity on lawn, garden or enclosed premises
2023, c.34, s.5
4.1(1)No person shall trespass by motor vehicle or other means or engage in an activity, whether or not the person has had notice from an authorized person not to trespass or engage in the activity, on the following premises:
(a) a lawn or garden; or
(b) a premises that is enclosed
(i) by a fence, a natural boundary or a combination of a fence and a natural boundary, or
(ii) in a manner that indicates the intention of the occupier or owner of the premises to keep persons off the premises.
4.1(2)A person found on a premises referred to in subsection (1) is presumed to be on the premises without the consent of an authorized person.
2023, c.34, s.5
Trespass by means of motor vehicle
5(1)No person shall trespass by means of a motor vehicle
(a) in any area designated by the Lieutenant-Governor in Council as a wildlife refuge or a wildlife management area under the Fish and Wildlife Act,
(b) in a protected natural area established under the Protected Natural Areas Act,
(c) in a watercourse,
(d) in a lake shore area,
(e) in an ocean shore area,
(f) in a saltwater marsh,
(g) in a freshwater marsh, or
(h) in any area which the Lieutenant-Governor in Council has designated by regulation as an area in need of protection from environmental damage.
5(2)Paragraphs (1)(c), (d), (e), (f) and (g) do not apply to a person operating a motor vehicle on ice or on frozen ground that is completely covered by snow.
5(3)Paragraph (1)(c) does not apply to a person driving a motor vehicle directly across a river, creek, stream, brook or other channel at a customary crossing point.
5(4)Paragraphs (1)(c), (d), (e), (f) and (g) do not apply to
(a) any land within a provincial park as defined in the Parks Act, and
(b) any land within an incorporated city, town or village.
5(5)Subsection (1) does not apply to the operation of a motor vehicle on a roadway designed or ordinarily used for the passage of conventional motor vehicles.
1985, c.70, s.2; 1988, c.45, s.1; 2003, c.P-19.01, s.41; 2004, c.12, s.55
Trespass on land belonging to certain classes of land
2023, c.39, s.1
6(1)No person shall trespass on any of the following classes of lands:
(a) land that is being cultivated for the production of food for humans or livestock;
(b) land that is being managed for the production of food for humans or livestock;
(c) an orchard that is being cultivated;
(d) an orchard that is being managed;
(e) a pasture;
(f) a Christmas tree plantation;
(g) a plantation of seedlings and saplings; and
(h) land that is being managed for maple sugaries.
6(2)Subsection (1) does not apply to a person who, before entering in or on land that belongs to one of the classes of lands referred to in paragraphs (1)(a) to (h), obtains the written consent of the owner or occupant of the land allowing that person to enter in or on the land.
1989, c.42, s.2; 2023, c.39, s.1
Trespass on forest land
7(1)No person shall trespass by means of a motor vehicle on forest land with respect to which the person has had notice not to trespass.
7(2)For the purposes of subsection (1), a person has notice not to trespass when the person has been given notice
(a) 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 land to which it applies, or
(b) by word of mouth or in writing by an authorized person to refrain from entering or remaining on the land and the notice shall be deemed to have been given by an authorized person under this Act until the contrary is proved.
7(3)A sign posted for the purposes of paragraph (2)(a) shall bear the words “no trespassing” or words of similar effect, together with the words “by order of” followed by the name of the occupier or owner of the premises, plainly visible and legible.
1983, c.T-11.2, ss.3(1), (2), (3); 1985, c.70, s.3; 1989, c.42, s.3; 2008, c.11, s.26; 2023, c.34, s.6
Interference with signs
8No person shall tear down, remove, damage, deface or cover up a sign that has been posted by the occupier or owner of the premises.
1983, c.T-11.2, ss.3(4); 2008, c.11, s.26; 2023, c.34, s.7
Duty of occupier
9An occupier owes no duty of care to a trespasser, including a trespasser who drives a motor vehicle, is a passenger in a motor vehicle or is towed by a motor vehicle, on the premises of the occupier except the duty not to
(a) create a danger with the deliberate intent of doing harm or damage to the trespasser or their property, and
(b) act with reckless disregard of the presence of the trespasser or their property.
1983, c.T-11.2, s.9; 1985, c.70, s.6; 1989, c.42, s.6; 2023, c.34, s.8
Identification and arrest
10(1)An occupier or owner of a premises may require any person the occupier or owner believes on reasonable grounds to have committed an offence under this Act to identify themselves.
10(2)If a person referred to in subsection (1) fails or refuses to identify themselves or if there are reasonable grounds to believe that the identification given is false, the occupier or owner may arrest the person without warrant to establish the person’s identity for purposes of a prosecution under this Act.
10(3)Subject to subsection (4), the person who makes the arrest under this section shall, as soon as practicable, deliver the person arrested to a peace officer, and the peace officer to whom the person arrested is delivered shall be deemed to have arrested the person and shall proceed in accordance with the Provincial Offences Procedure Act.
10(4)If the identity of the person apprehended under this section is established before the person is delivered to a peace officer, the person shall be released.
1983, c.T-11.2, s.7; 1985, c.70, s.5; 1989, c.42, s.5; 1990, c.22, s.51; 2023, c.34, s.9
Arrest without warrant by peace officer
2023, c.34, s.10
10.1(1)A peace officer may arrest without warrant any person found on a premises if the peace officer has reasonable grounds to believe that the person is committing an offence under this Act.
10.1(2)A peace officer may arrest a person without warrant if the peace officer has reasonable grounds to believe that the person has committed an offence under this Act and has recently departed from the premises and
(a) the person fails or refuses to identify themselves to the peace officer, or
(b) the peace officer has reasonable grounds to believe that the identification given by the person is false.
2023, c.34, s.10
Seizure and detention of motor vehicle
11(1)If a peace officer has reasonable grounds to believe an offence under this Act has been committed by means of a motor vehicle and that the seizure of the motor vehicle is necessary to prevent the continuation or repetition of the offence or the commission of another offence under this Act, the peace officer may seize and detain the motor vehicle for a period of time not exceeding 48 hours as the peace officer considers necessary.
11(2)Before a motor vehicle seized and detained under this section is released, the expenses relating to the seizure and detention shall be paid by the person to whom it is to be released, except if that person is the owner of the motor vehicle and the motor vehicle, at the time when it was seized, had been taken or was being used without the owner’s consent.
11(3)When a motor vehicle seized and detained under subsection (1) has not been released within 30 days after the seizure, the peace officer shall notify the Attorney General, who may sell or otherwise dispose of the motor vehicle as the Attorney General sees fit.
1983, c.T-11.2, s.8; 1984, c.67, s.2; 2023, c.34, s.11
Offences and penalties
2023, c.34, s.12
12(1)A person who violates or fails to comply with a provision of this Act that is listed in Column I of Schedule A commits an offence.
12(2)For the purposes of Part 2 of the Provincial Offences Procedure Act, each offence listed in Column I of Schedule A is punishable as an offence of the category listed beside it in Column II of Schedule A.
12(3)Repealed: 2023, c.34, s.13
2008, c.11, s.26; 2023, c.34, s.13
Defences to trespass
2023, c.34, s.14
12.1It is a defence to a charge under this Act that the person charged reasonably believed that they
(a) had title to or an interest in the premises that entitled them to enter on the premises or to do the act complained of, or
(b) had legal justification or the permission of an authorized person to enter on the premises or to do the act complained of.
2023, c.34, s.14
Commission of offence by means of motor vehicle
13(1)When an offence under this Act is committed by means of a motor vehicle, the driver of the motor vehicle commits the offence.
13(2)Proof that any person is, or was on the date of any alleged offence under this Act, the registered owner of a motor vehicle by means of which the offence is alleged to have been committed, shall be proof, in the absence of evidence to the contrary, that the person was the driver of the motor vehicle at the time of the alleged offence.
13(3)For the purposes of determining the registered owner of a motor vehicle under this section, the provisions of the Motor Vehicle Act and the Off-Road Vehicle Act relating to registered owners apply with the necessary modifications.
1983, c.T-11.2, s.4; 1985, c.A-7.11, s.42; 2003, c.7, s.41
Forfeiture of motor vehicle
14(1)If a person is convicted of a second or subsequent offence under this Act by means of a motor vehicle in relation to the same land, the court may, on application by counsel for the Attorney General, order that the motor vehicle be seized and forfeited to the Crown, and on the order being made, the motor vehicle is immediately forfeited to the Crown.
14(2)If a motor vehicle is forfeited to the Crown under subsection (1), any person, other than a person who was convicted of the offence, who claims an interest in the motor vehicle as owner, mortgagee, lienholder or holder of any like interest may, within 30 days after the date of the forfeiture, apply to a judge of The Court of King’s Bench of New Brunswick for an order under subsection (5).
14(3)The judge to whom an application is made under subsection (2) shall fix a day not more than 20 days after the date of filing of the application for the hearing of the application.
14(4)The applicant shall serve notice of the application and of the hearing on the Attorney General at least ten days before the day fixed for the hearing.
14(5)If, on the hearing of an application, it is made to appear to the satisfaction of the judge that the applicant is innocent of any complicity in the offence that resulted in the forfeiture and of any collusion in relation to that offence with the person who was convicted, the applicant is entitled to an order declaring that the applicant’s interest is not affected by the forfeiture and declaring the nature and extent of the applicant’s interest.
14(6)The applicant or the Attorney General may appeal an order made under subsection (5) and the procedure governing appeals from orders or judgments of a judge of The Court of King’s Bench of New Brunswick applies.
14(7)Subject to subsection (9), on application made to the Attorney General by any person who has obtained a final order under this section, the Attorney General shall
(a) direct that the motor vehicle to which the interest of the applicant relates be returned to the applicant, or
(b) direct that an amount equal to the extent of the interest of the applicant, as declared in the order, be paid to the applicant.
14(8)An application shall be made under subsection (7) not later than ten days after a final order is made under this section.
14(9)Before a motor vehicle seized and forfeited under this section is released, the expenses relating to the seizure and storage of the motor vehicle shall be paid by the applicant, unless the applicant is the owner of the motor vehicle and the motor vehicle, at the time of the offence leading to its forfeiture, had been taken or was being used without the applicant’s consent.
14(10)The applicant may, by action in a court of competent jurisdiction, recover the expenses relating to the seizure and storage of the motor vehicle under this Act from the person convicted of the offence.
14(11)The Attorney General may sell or otherwise dispose of the motor vehicle as the Attorney General sees fit if
(a) notice of an application made under subsection (2) has not been served on the Attorney General within the time prescribed in subsection (4),
(b) an application has been made under subsection (2) and dismissed and the time limited for appeal has expired, or
(c) an amount is to be paid under paragraph (7)(b).
1983, c.T-11.2, s.5; 1984, c.67, s.1; 2023, c.17, s.270; 2023, c.34, s.15
Compensation for loss or damage to property
15(1)If a person is convicted of an offence under this Act, the court may, at the time the penalty is imposed and on application by a person aggrieved, order the convicted person to pay to the aggrieved person an amount, not exceeding the prevailing limit in relation to small claims in The Court of King’s Bench of New Brunswick, by way of compensation for loss of or damage to property suffered as a result of the commission of the offence.
15(2)If a prosecution under this Act is conducted by a private prosecutor and the accused is convicted, unless the court is of the opinion that the prosecution was not necessary for the protection of the owner or occupier or the owner or occupier’s interests, the court may determine the actual costs reasonably incurred in conducting the prosecution and order those costs to be paid by the accused.
15(3)If an amount ordered to be paid under subsection (1) or (2) is not paid without delay, the order may be filed in The Court of King’s Bench of New Brunswick and shall be entered and recorded in that Court, and when entered and recorded, the order becomes a judgment of that Court and may be enforced as a judgment obtained in the Court against the person named in the order for a debt in the amount stated in the order.
15(4)All reasonable costs and charges resulting from the filing, entering and recording of an order under subsection (1) are recoverable in the same manner as if the amount of those costs and charges had been included in the order.
15(5)An order under subsection (1) shall be in addition to any fine, penalty or forfeiture imposed under this Act.
15(6)If a person in whose favour an order is made under subsection (1) subsequently brings a civil action against the person convicted arising out of the same facts, the amount ordered to be paid under subsection (1) shall be deducted from any amount recovered in the civil proceeding.
1983, c.T-11.2, s.6; 1985, c.70, s.4; 1989, c.42, s.4; 2008, c.11, s.26; 2023, c.17, s.270; 2023, c.34, s.16
Regulations
16The Lieutenant-Governor in Council may make regulations
(a) exempting any land from the application of subsection 5(1);
(b) specifying uses of a motor vehicle which may be carried out on any land referred to in subsection 5(1);
(c) designating areas in need of protection from environmental damage.
(d) Repealed: 2023, c.39, s.1
(e) Repealed: 2023, c.39, s.1
(f) Repealed: 2023, c.39, s.1
1985, c.70, s.8; 1989, c.42, s.8; 2023, c.39, s.1
SCHEDULE A
Column I
Column II
Provision
Category of Offence
3(1)(a)..............
C
3(1)(b)..............
E
3(1)(c)..............
F
3(1)(d)..............
C
4.1(1)..............
C
5(1)..............
F
6..............
E
7(1)..............
C
8..............
C
2008, c.11, s.26; 2023, c.34, s.17
N.B. This Act was proclaimed and came into force March 1, 2013.
N.B. This Act is consolidated to December 13, 2023.