DATE: May 20, 2008
SUBJECT: GUIDELINE GOVERNING THE PROSECUTION OF THOSE WHO ENTER UPON LEASED GRAZING LAND
Crown prosecutors are sometimes required to consider whether to commence or continue a prosecution of an individual who is alleged to have entered Crown land that has been subject to an agricultural disposition pursuant to the Public Lands Act, RSA 2000, c. P-40 (e.g., a lease by the Crown for the purpose of allowing the lessee to graze livestock).The following principles govern the consideration and conduct of any such prosecution.
- There is authority for the proposition that, at common law, a lessee of Crown land may prohibit access to the leased land and may hold a trespasser civilly liable in tort.
- Pursuant to ss. 1, 2, 2.1 and 3 of the Petty Trespass Act, RSA 2000, c. P-11, those who enter Crown land that is subject to a disposition pursuant to the Public Lands Act may be prosecuted for trespass under that Act.
- However, pursuant to s. 1.1 of the Petty Trespass Act those who enter such lands for a recreational purpose, as detailed in the Recreational Access Regulation, AR 228/2004, are exempt from prosecution for trespass under the Act.
- As such, any prosecution arising from a recreational user’s entry upon such lands may only be conducted pursuant to the Criminal Code of Canada. While the charging section(s) would depend upon the conduct alleged, the following sections are most commonly applicable.
- Section 430(1)(c)
Section 430(1)(c) is engaged if it is alleged that the purported recreation user wilfully obstructed, interrupted or interfered with the lessee’s lawful use, enjoyment or operation of the Crown-leased land. As such, to support a prosecution under this subsection, there would have to be sufficient evidence that the person interfered with the lessee’s purpose in using the land (i.e., grazing livestock).
- Sections 266, 267 or 268
Pursuant to s. 41(1), a lessee is entitled to use as much force as is necessary to evict a trespasser from the land. By virtue of s. 41(2), a trespasser who resists being removed may be prosecuted for assault or related conduct. Such resistance would not include passive resistance, but would include resistance by violence (e.g., by striking back).