I have been charged with trespassing. What do I need to know?

4. Understand what happens at a trial

If you request a trial in Provincial Offences Court, the prosecutor has to prove that you trespassed.

What the prosecutor needs to prove

The prosecutor needs to prove different things depending on which one of the 3 trespass offences you have been charged with.

They will always have to prove:

  • the identity of the property owner
  • your identity
  • the date, time, location, and city where the trespass happened
  • that it was you who trespassed

The legal test is beyond a reasonable doubt. This means the prosecutor must show close to an absolute certainty that you entered the property when entry was not allowed, or that you were doing an activity that was not allowed while on the property.

Trespass is a strict liability offence. This means that the prosecutor does not need to prove that you meant to trespass.

Defences

You can defend a trespass charge by showing that you did your “due diligence”. This means that you:

  • took all reasonable steps to avoid trespassing,
  • had permission to be on the property, or
  • believed that you owned the property

Another defence you can use is the defence of “necessity”. You must prove that you had no legal alternative but to trespass, for example, if you were in danger.

There are also some procedural defences, such as:

  • problems with the ticket, for example, the officer did not put their name on the ticket, the offence is not listed, or the location of the offence is not identified
  • the officer didn’t file the ticket with the court within 7 days or the ticket was filed in the wrong court
  • not enough disclosure or information about the officer’s notes and other details of the offence
  • a long delay in having a trial

For more information about how to prepare for a provincial offences trial, read the question: What happens at a provincial offences trial, and how to I prepare?

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