“It is a fundamental proposition of property law that an owner can exclude any and all trespassers, including those that are for all practical purposes harmless.”’
– The Honourable Justice E.M. Morgan, of the Ontario Superior Court of Justice
It has been about a month since the Pokémon Go App was launched and it has become hard to ignore the popularity of the game (even if you want to). Groups of players, also known as “trainers”, can be found lingering around in public, quasi-public, and private areas in an effort to catch Pokémon, battle at a “gym”, or reap rewards at a local Pokéstop.
In an effort to encourage responsible Pokémon chasing, I have written this blog post to provide some general insight into the legalities of trespassing – so that trainers can be more informed about the dangers of wandering onto private property in their efforts to “level up.”*
To preface, it is worth noting that there are two types of trespass: criminal (or quasi-criminal) and civil trespass. The criminal (or quasi-criminal) offences of trespass are set out in the Nova Scotia Protection of Property Act and the Criminal Code, whereas civil trespass gives rise to a private claim between private parties (the property owner and the trespasser) for damages or other relief.
Both categories of trespass will be discussed, in turn, below.
Criminal (Quasi-Criminal) Trespass
Protection of Property Act – Quasi Criminal Trespass
Under Nova Scotia’s Protection of Property Act, it is an offence to enter private property consisting of lawns, gardens, orchards, vineyards, golf courses, farm lands, railway lines, fenced-in properties, dumps, or any property where a sign has been posted prohibiting access, without permission. The potential penalty is a fine of up to $500.
If you are asked to leave a property (any property, not just those categories of properties listed above) and you refuse to do so, you can be arrested in order to prevent further trespass. To be clear, it does not matter that you are “so close to finding the elusive Ditto”, you can still be arrested.
Under the Act, if the property owner suffers any damage because of the trespass they may be able to seek an order for damages of up to $2000. The property owner can also sue the trespasser privately for damages (civil trespass) as explained later in this post.
It is also an offence under the Act to disturb a property owner with “disorderly behaviour.” This offence does not even require that the trainer be physically on the owner’s property; it applies even if trainers are only “near” the property while behaving in a disorderly way.
Criminal Code – Criminal Trespass
Trainers need to be even more careful when chasing Pokémon after dark; there is an offence under the Criminal Code about trespassing at night, which reads:
Everyone who, without lawful excuse, the proof of which lies on him, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.
“The proof of which lies on him” means that if players are caught loitering or prowling near another person’s house at night, the burden is on them to show why they were allowed to be there. Unfortunately “catching a Charmander” is unlikely to be considered a lawful excuse.
Merely walking across someone’s yard will not be considered “prowling” pursuant to the Criminal Code; the action has been described by an Ontario judge as: “furtive, secretive, and stealthy.” On the other hand, a nighttime gathering of trainers, eyes all affixed on their phones, could potentially be seen as “loitering” under the Criminal Code.
Military or other dangerous property
Pokémon chasers could find themselves in greater trouble if they accidently cross onto more dangerous ground, for example, a military base. An incursion on military property may result in anything from a warning to arrest and charges. In a recent CBC News article, the Canadian military has released a statement advising:
[That] duty officers will respond to “suspicious activity” including: wandering the base while staring at phones, hopping fences to get into controlled sites, or abandoning vehicles on the side of the road to gain access to the base.
In short, keep off military property!
The simple act of voluntarily walking onto someone’s property constitutes civil trespass. A player does not even have to cause physical damage to the property to give rise to an actionable claim. This means that if your neighbour yells: “get off my lawn or I’ll sue you!”, listen, because they actually can.
If a Pokémon trainer finds themselves entangled in a civil suit for having wandered onto private property, the property owner may have a tough time arguing for more than nominal damages before a court, absent any physical damage to the property. However, if the Pokémon Go craze continues and there are actual (or perceived) elevated nuisances caused by repeated trespasses, then a court may be inclined to order a more significant general damages award for inconvenience and/or distress to property owners in an effort to deter other trainers from entering onto private lands.
Further, if a trainer carelessly wanders onto a neighbour’s garden and squashes a prized hydrangea bed or accidently breaks a neighbour’s fence while trying to capture a rogue Parasect, they could find themselves on the hook for more significant sums of money.
So what’s the Take-Home Message?
To all the Pokémon chasers out there, please keep your heads up and be conscientious of where you are at all times. If you are unsure about whether you have permission to be on a particular property, stick to the sidewalk! It is better to be safe than sorry.
*In the interest of full disclosure: I downloaded the App last week (“research”). I apologize for any misuse of proper Pokémon lingo. My Pokédex is still only 6 strong – go easy on me.
Articled Clerk Mary Brown assisted with this post.