Provincial Offences Act R.S.O 1990

The purpose of the Provincial Offences Act is: to replace the summary conviction procedure for the prosecution of provincial offences, including the provisions adopted by reference to the Criminal Code (Canada), with a procedure that reﬂects the distinction between provincial offences and criminal offences.

Designation of Provincial Offences Officers

(3) A minister of the Crown may designate in writing any person or class of persons as a provincial offences ofﬁcer for the purposes of all or any class of offences.R.S.O. 1990, c. P.33, s. 1 (3).

In general, the only time that Security Guards will be engaged in enforcement activities that fall under the Provincial Offences Act is when they are licensed under speciﬁed municipalities to assist in the enforcement of Parking Violations.

Residential Tenancies Act, 2006

The purposes of this act are to provide protection for residential tenants from unlawful rent increases and unlawful evictions, to establish a framework for the regulation of residential rents, to balance the rights and responsibilities of residential landlords and tenants and to provide for the adjudication of disputes and for other processes to informally resolve disputes.

LANDLORD AND TENANT RIGHTS LEGISLATION

Security Guards will generally be involved in securing private property as it relates to commercial or industrial buildings such as malls, office or industrial buildings. However, in some instances security guards may become involved in disputes involving residential issues such as apartment or townhouse issues.

In such instances the landlord, tenant and of course, the security guard may find themselves governed by Province of Ontario Legislation known as the Residential Tenancies Act, 2006.

A landlord may only access the property where a tenant is living in circumstances set out in the legislation. Any rules that apply to the landlord obviously also apply to the security guard who is working for the landlord. Therefore the security guard who is providing security to premises where there are residential rental units must ensure that he does not violate the tenant’s rights under residential tenancy law.

Under certain circumstances (to conduct repairs, to show a property to prospective renters, to carry out agreed upon housecleaning…) a landlord and therefore a security guard may enter upon a tenant’s property. Usually this takes place during agreed upon times or where the tenant has been given at least 24 hours advance notice.

Under section 26 of the residential Tenancies Act, 2006 a landlord or guard acting under authority of a landlord may enter upon a tenant’s premises “in cases of emergency”. Common sense dictates what constitutes and emergency — burst water pipes, electrical emergencies…

Landlords and security guards cannot enter tenants’ premises to conduct random inspections or investigations.

Section 40 of the Residential Tenancies Act, 2006 states that 3 landlord may not, without legal process seize a tenant’s property.

Section 9(1) of the Private Security and Investigate Services Act (PSISA) makes it illegal for a security guard to participate in the eviction of a tenant.

Laws Regarding Arrest

For security guards, there are three laws regarding arrest.

They are:

Trespass to Property Act – Provincial Legislation
Criminal Code of Canada
Charter of Rights and Freedom

Trespass to Property Act

Deﬁnitions

1. (1) In this Act,“occupier” includes,

a) a person who is in physical possession of premises,

b) a person who has responsibility for and control over the condition of premises or the activities there carried on, or control over persons allowed to enter the premises, even if there is more than one occupier of the same premises; (“occupant”)

“premises” means lands and structures, or either of them, and includes, water, ships and vessels, trailers and portable structures designed or used for residence, business or shelter, trains, railway cars, vehicles and aircraft, except while in operation. (“lieux”) R.S.O. 1990, c. T.21, s. 1 (1).
School boards (2) A school board has all the rights and duties of an occupier in respect of its school sites as deﬁned in the Education Act. R.S.O. 1990, c. T.21, s. 1 (2).

Trespass an Offence

2. (1) Every person who is not acting under a right or authority conferred by law and who,

(a) without the express permission of the occupier, the proof of which rests on the defendant,

i. enters on premises when entry is prohibited under this Act, or

ii. engages in an activity on premises when the activity is prohibited under this Act; or

(b) does not leave the premises immediately after he or she is directed to do so by the occupier of the premises or a person authorized by the occupier, is guilty of an offence and on conviction is liable to a ﬁne of not more than $2,000. R.S.O. 1990, c. T.21, s. 2 (1).

Arrest Without Warrant on Premises

9. (1) A police ofﬁcer, or the occupier of premises, or a person authorized by the occupier may arrest without warrant any person he or she believes on reasonable and probable grounds to be on the premises in contravention of section 2. R.S.O. 1990, c. T.21, s. 9 (1).

Delivery to police ofﬁcer

(2) Where the person who makes an arrest under subsection (1) is not a police ofﬁcer, he or she shall promptly call for the assistance of a police ofﬁcer and give the person arrested into the custody of the police ofﬁcer. R.S.O. 1990, c. T.21, s. 9 (2).

Deemed arrest

(3) A police ofﬁcer to whom the custody of a person is given under subsection (2) shall be deemed to have arrested the person for the purposes of the provisions of the Provincial Offences Act applying to his or her release or continued detention and bail. R.S.O. 1990, c. T.21, s. 9 (3).

A private security guard may arrest a person believed to have committed an offence under this act “on reasonable and probable grounds.” This means that the security guards need not actually find the offence being committed. Rather, the private security guard can act on information provided to him by third parties such as other staff members or members of the public.

An actual definition of the term “reasonable and probable grounds” is not provided under this or any Act. As in the definition of ‘arrest’, interpretations are provided through the recordings of judges rulings in past criminal cases and commonly referred to as case law.

Some interpretation (by example) of this section: ‘enters on premises when entry is prohibited under this Act”:

Example 1: An area of the premises is marked by signs reading: STAFF ONLY. Any unauthorized individual found entering or within such an area can be arrested by a security guard.

Example 2: An individual has been banned from the premises on a previous occasion. That individual has returned to the premises and is observed by private security guards. The banned individual can now be arrested as his re-entry onto the premises has been prohibited by the Act.

As the Act allows for the arrest to be made on “reasonable and probable grounds” the private security guard involved in the arrest need only have knowledge that the banning was in effect. These individuals did not have to be involved in the actual initial banning occurrence. “does not leave the premises immediately after he or she is directed to do so”:

Example 3: Private security guards receive information that an individual has been acting in a manner offensive to guests or staff within the premises. The offensive behavior need not be prohibited by signs or notices. It can include situations of shouting, swearing or threatening behavior. The Act allows private security guards to demand that the offending individual leave the premises and associated grounds. Should the individual not heed these instructions he can be arrested.

To reiterate, this Act allows private security guards to act on “reasonable and probable

grounds”. Therefore they need not have to witness the offence in order to take action. Information provided by witnesses would be sufficient to initiate action.