Bylawpedia

Authority to Enter Property

Author: Michael Tillmann

Published: March 13, 2024

Last Updated: March 23, 2024

Introduction

During the course of their work, bylaw enforcement officers acting on behalf of a local government will often have to enter private property. This may be for the purpose of conducting a routine inspection, investigating a complaint about a bylaw violation or perhaps to perform an enforcement action, such as seizing an animal or carrying out a remedial action requirement. Sometimes the owner or occupier of the private property in question will voluntarily allow the bylaw enforcement officer onto the property, but in many cases the property holder will not do so; and sometimes the property holder cannot even be contacted in order to ask for permission, either because contact information is not available or the property holder is actively avoiding contact. This is a problem because, entering private property without the consent of the owner or occupier is normally considered trespassing in Canada and can potentially result in the trespasser being sued, being charged under a quasi-criminal provincial trespassing statute and, in some circumstances, being charged with a criminal offence under the federal Criminal Code[1] (Legal Line, n.d.b).

In the policing world, when a police officer wishes to enter private property without consent for a law enforcement purpose, they normally need to obtain a warrant from a court to authorize the entry. However, this is not always necessary for bylaw enforcement officers in Canada. Depending on the laws of the province or territory in question, bylaw enforcement officers may have legal authority to enter private property without consent and without a warrant (SVLaw.ca, n.d.).

This can create situations where bylaw enforcement officers have wider authority to enter private property than police officers do, which may be surprising to some. However, the courts have ruled on the constitutionality of this authority for bylaw enforcement personnel and found that it is usually permissible under the Canadian Charter of Rights and Freedoms (R. v. Bichel, 1986). Having said that, one should note that the courts have found that warrantless entries by personnel enforcing regulatory laws are usually constitutionally valid; usually but not always. There are some special circumstances where they might not be, which will be discussed further later (Arkinstall v. City of Surrey, 2010; Office of the Ombudsperson, 2015, pp. 31-32).

In the province of British Columbia, the power of persons acting on behalf of a local government - including bylaw enforcement officers - to enter private property is found in three statutes called the Community Charter (2003), the Local Government Act (2015) and the Vancouver Charter (1953). The Community Charter lays out the powers of entry available to municipalities (other than the City of Vancouver), while the Local Government Act deals with the authorities open to regional districts, and finally the Vancouver Charter sets out the entry powers that are unique to the City of Vancouver.

Implied Licence to Enter Property

To begin, it is important to note that the law considers that there is sometimes implied permission (or implied licence as it is known in law) for all persons to enter private property, even without an explicit invitation. This also applies to police and other law enforcement personnel, such as bylaw enforcement officers.

One situation where implied licence to enter property will apply is in cases where a person goes to someone's home for the purpose of communicating with the person. Under the implied licence, a person is permitted to approach the front door of a home on private property in order to communicate with someone who lives there, unless the person has said or done something to indicate that the visitor is not welcome; i.e. put up signs telling people to stay out or previously told the visitor not to come (Legal Line, n.d.b).

Another place which would be subject to an implied licence to enter would be a commercial premises. If a person opens up a shop or other commercial operation that sells goods or services to the public, then it would be implied that any member of the public is allowed to enter the premises, at least until the implied licence is revoked; i.e. by posting signs, telling people to leave, etc. (R. v. Mulligan, 2000).

It is always important to remember that an implied licence to enter private property can be revoked by the property's owner or occupier. If the owner or occupant tells someone to leave, then the licence is revoked immediately at that time (Legal Line, n.d.b). As well, if a person is not acting in line with the purpose of the implied licence, but instead has some ulterior motive, this can render the implied licence invalid.

For example, a law enforcement officer would not be able to use an implied licence to justify going to the front door of a home if the officer's purpose was to look for evidence of illegal activity. The implied licence only covers situations where someone legitimately wants to communicate with an occupant of the home. If the officer has an ulterior motive of collecting evidence, and not just having a conversation with the occupant, then the implied licence is invalidated (Novakowski, 2016).

Authority to Enter Property (Municipalities)

In Section 16 of the Community Charter, it states that municipal officers and employees, and other persons authorized by a municipal council, may enter private property without consent to carry out their duties, subject to certain limits the section lays out (Community Charter, 2003, ss. 16(1) - 16(3); Howieson, 2009, pp. 4-5). These limits are as follows:

• Unless it is an emergency, the entry must only be done at a reasonable time and in a reasonable manner (Community Charter, 2003, ss. 16(4)(a))

• Unless it is an emergency, before entering the property, the municipal representative must make a reasonable attempt to inform the person who owns or occupies the property (Community Charter, 2003, ss. 16(4)(b)).

• If the place being entered is a dwelling-house (i.e. a private home), the municipal representative cannot enter without consent or a warrant except in certain limited circumstances. These circumstances include: 1) the owner or occupier of the dwelling-house has been given written notice at least 24 hours in advance; 2) the municipal representative has reasonable grounds to believe the entry is needed to prevent a significant risk to health or safety of a person; or 3) the municipal representative is checking whether certain regulations, prohibitions or requirements referred to in section 16(6)(a) of the Community Charter are being met (Community Charter, 2003, ss. 16(5) & 16(6)(a)).

Authority to Enter Property (Regional Districts)

The authority to enter property for personnel acting on behalf of a regional district is found in section 419 of the Local Government Act. This section states that a regional district can enact a bylaw which authorizes its officers, employees or agents to enter private property to inspect for compliance. Similar to the provision of the Community Charter which grants entry authority to municipal personnel, section 419 requires that an entry of property must be conducted at a reasonable time (Local Government Act, 2015, s. 419).

One interesting difference between section 16 of the Community Charter and section 419 of the Local Government Act is that, in the Local Government Act, there is no explicit mention of a requirement to conduct entries onto private property in a reasonable manner or to make a reasonable attempt to inform anyone before entering. However, despite these omissions, these requirements still apply because, if one looks elsewhere, one will find section 284 of the Local Government Act. This section expressly states that section 16 of the Community Charter applies to any entries onto property conducted by a regional district done under the authority of any enactment (Local Government Act, 2015, s. 284(1)).

As a secondary matter, section 284 of the Local Government Act also clarifies that regional district personnel may enter property in order to carry out enforcement actions referred to in section 418 of the Act, and not just to carry out inspections mentioned in section 419 (Local Government Act, 2015, ss. 284(2) & 418). This would include various direct enforcement measures, such as those conducted pursuant to an unsightly premises bylaw or nuisance abatement bylaw.

To summarize all of this legislation, it could simply be said that, due to section 284 of the Local Government Act, the powers of regional districts to conduct entries onto private property - and the limits on those powers - are more or less the same as those for municipalities under the Community Charter. The primary difference is that regional districts must enact a bylaw to authorize their personnel to enter property without consent, but municipalities do not (Office of the Ombudsperson, 2015, p. 31).

Authority to Enter Property (Vancouver)

Personnel acting on behalf of the City of Vancouver have legal authority to enter property without consent set out in the Vancouver Charter, which is a provincial statute that applies specifically to that municipality. The property entry powers it grants are, in some ways, more limited than those granted to other municipalities by the Community Charter. Where other municipalities are authorized to send their personnel onto private property for a broad array of reasons, the Vancouver Charter is more specific in the reasons for which municipal officials may enter property without consent or a warrant. As with the provisions regarding entry of property found in the Community Charter and the Local Government Act, the Vancouver Charter requires that entry be conducted at a reasonable time but, unlike those other enactments, there is no mention that the entry must be done in a reasonable manner or that a reasonable effort be made to inform the owner or occupier (Office of the Ombudsperson, 2015, p. 31).

Warrants

As has already been mentioned, bylaw enforcement officers in British Columbia generally don't need a warrant to enter private property without the consent of its owner or occupier; with a few noteworthy exceptions. The Local Government Act and the Community Charter grant substantial authority on both municipalities and regional districts to conduct warrantless entries onto private property to conduct inspections and investigations and to take other actions, like seizing animals for violations of animal control bylaws or removing unsightly material that violates an unsightly premises bylaw (Community Charter, 2003, ss. 16 & 17; Local Government Act, 2015, ss. 284, 418, 419).

Despite this, there are times when a warrant is necessary or, if not necessary, at least desirable. For example, obtaining a warrant to authorize bylaw enforcement officers to enter a property may be necessary, or desirable, if the owner or occupant of the property is refusing access. In these situations, obtaining a warrant may convince the property holder to stop denying access to the property. Additionally, if a warrant is obtained, this can provide authority for bylaw enforcement staff to bring police along with them to provide security[2] and to remove or rekey locks on doors or gates which block access to the property (Howieson & Moll, 2010, pp. 7-8; Local Government Compliance and Enforcement Association, n.d.).

There are two different types of warrants that bylaw enforcement officers could apply for when seeking access to a property. There is a traditional search warrant that could be applied for under the provincial Offence Act (1996, s. 21). This is the same type of warrant which is used for many other offences under various provincial legislation. Alternatively, a bylaw enforcement officer could apply for an entry warrant under the Community Charter, which is a specialized type of warrant intended for use by municipalities and regional districts (Community Charter, 2003, s. 275; Local Government Act, 2015, s. 424).

In both cases, the application process would involve the bylaw enforcement officer going before a justice of the peace, presenting a document known as an information which lays out the officer's reasons for needing the warrant and giving an oath as to the accuracy of the document. The justice would then consider the information and, if satisfied that it was appropriate, issue the warrant (Howieson & Moll, 2010, pp. 9-11).

Normally, bylaw enforcement officers will choose to apply for an entry warrant rather than a traditional search warrant. This is likely because, amongst other reasons, the legal threshold for obtaining the entry warrant is lower than for a traditional search warrant. To obtain a search warrant under the Offence Act requires proof that satisfies a justice of the peace there are reasonable grounds to believe evidence of a bylaw violation will be found. By comparison, the threshold for obtaining an entry warrant under the Community Charter is only evidence that satisfies a justice of the peace that entering the property is necessary in order to accomplish some legally valid purpose under the Community Charter or Local Government Act (Community Charter, 2003, s. 275; Howieson & Moll, 2010, p. 8; Offence Act, 1996, s. 21).

Warrantless Entries and the Charter of Rights

There have been several court cases where persons have challenged the laws which authorize local government personnel to enter private property without consent and without a warrant on the grounds that these laws violate rights found in the Canadian Charter of Rights and Freedoms; that being the portion of the Constitution of Canada where certain basic rights have been constitutionally entrenched (The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982). Most of these constitutional challenges have failed, with the courts ruling that, in contrast with the police, it is often permissible for personnel enforcing bylaws to enter private property without consent and without a warrant (Coffey v Fraser Valley (Regional District), 2018; Lundquist v Central Kootenay (Regional District), 2019; R. v. Bichel, 1986).

To summarize the rationale behind these rulings, the courts found that entries of private property by the bylaw enforcement personnel were of less consequence than entries by police and therefore did not need to be as heavily regulated. They highlighted that police searches had substantial stigma attached to them because of their criminal nature and those searches tended to be far more intrusive and extensive than a bylaw enforcement inspection or investigation. Consequently, these warrantless entries of private property by local government personnel were held to be constitutional and not to violate the Charter of Rights (Howieson & Moll, 2010, p. 3).

But that is not the end of the story, because there has also been one prominent case where a court found an entry by local government officials onto private property without a warrant to be unconstitutional. In that case, decided in 2010 by the British Columbia Court of Appeal, it was ruled that a team of inspectors working for the City of Surrey in British Columbia had violated section 8 of the Charter of Rights and Freedoms, which guarantees persons the right to be safe from unreasonable search and seizure. This was because the inspectors had entered the home of a family, against their wishes and without a warrant, to search for a suspected illegal marihuana grow operation. The inspectors had relied on a provincial statute, the Safety Standards Act, which provided they didn't need a warrant or consent to conduct an electrical safety inspection of a home, but the British Columbia Court of Appeal found that law to be unconstitutional, at least in that particular instance (Arkinstall v. City of Surrey, 2010).

The British Columbia Court of Appeal didn't rule that all warrantless entries onto private property by bylaw enforcement personnel are always unconstitutional violations of the Charter of Rights, but they found that in the Arkinstall case there were a number of factors that made it unacceptable. For one thing, the court found that the search was very intrusive because it involved inspecting every part of the interior of a home, a place in which a person has a high expectation of privacy. For another, they found the search had substantial stigma attached to it because it was looking for a suspected marihuana grow operation which, if found, would constitute a criminal offence. Finally, the court also noted how the local government had the time and opportunity to apply for a warrant but did not (Arkinstall v. City of Surrey, 2010).

Based on the decision in the Arkinstall case, it is now apparent that sometimes a warrantless entry onto private property by bylaw enforcement officers can be found to be unlawful and unconstitutional if certain factors are present. It would appear that the more intrusive an entry onto private property is, and the more stigma attaches to it, the more legally risky it would be for local government officials to conduct the entry without a warrant. However, other minimally intrusive operations, such as the inspection of the outdoor areas of a property or the exterior of a home, likely would be constitutionally safe, especially if there was no likelihood of discovering anything criminal (Office of the Ombudsperson, 2015, pp. 31-32).

END NOTES:

[1] Trespassing is not considered a criminal offence in Canada in most circumstances, but there are some occasions where it can become criminal. One example is that, if a person trespasses on property at night and there is a private home on the property, this can be a criminal offence (Legal Line, n.d.b). Additionally, if a person is found trespassing inside a home or other building, the Criminal Code presumes the person intends to commit a crime and this can lead to charges such as 'break and enter', even if the person did not actually physically break or damage something to gain entry (Criminal Codex Inc., n.d.). As well, even if trespassing is technically not a crime, every province in Canada has provincial statutes which make it a quasi-criminal offence. Only the three territories do not have trespassing statutes.

[2] With a few exceptions, police cannot enter private property without the consent of the owner or occupant or a warrant (Legal Line, n.d.a). This means that, if a bylaw enforcement officer wishes to bring police along during their entry onto private property for safety reasons and the owner or occupant objects, the police officer may not be able to lawfully remain on the property. However, if a warrant is granted to a bylaw enforcement officer to enter the property, it is possible that the warrant could contain a clause authorizing police officers to accompany the bylaw enforcement officer to provide security, thus doing away with the need for the owner or occupier to consent to the police officer's presence (Howieson & Moll, 2010, pp. 7-8; Local Government Compliance and Enforcement Association, n.d.).

REFERENCES:

Arkinstall v. City of Surrey, 2010 BCCA 250 (CanLII). https://canlii.ca/t/29tgx

Coffey v Fraser Valley (Regional District), 2018 BCSC 959 (CanLII). https://canlii.ca/t/hshr3

Community Charter, SBC 2003, c. 26. https://canlii.ca/t/5660d

Crime Codex Inc. (n.d.) Break and Enter with Intent Laws in Canada. Criminal Code Help. https://www.criminalcodehelp.ca/offences/against-property/break-and-enter/

Howieson, D. (2009, November 27). The Appointment and Powers of a Bylaw Enforcement Officer [Seminar Paper]. Young, Anderson Barristers & Solicitors. https://www.younganderson.ca/images/seminar_blogs/Appointment_and_Powers_of_Bylaw_Enforcement_Officers-DH.pdf

Howieson, D. & Moll, M. (2010, June 10). Arkinstall: Why You May Need An Entry Warrant and How to Get One [Seminar Paper]. Young, Anderson Barristers & Solicitors. https://www.younganderson.ca/images/seminar_blogs/Arkinstall_BCCA-Paper_Format-Final.pdf

Legal Line. (n.d.a). Can the police enter and search your home? Legalline.ca. Retrieved on March 12, 2024 from https://www.legalline.ca/legal-answers/can-the-police-enter-and-search-your-home/

Legal Line. (n.d.b). Trespassing on someone's property. Legalline.ca. Retrieved on March 12, 2024 from https://www.legalline.ca/legal-answers/trespassing-on-someones-property/

Local Government Act, RSBC 2015, c. 1. https://canlii.ca/t/566f7

Local Government Compliance and Enforcement Association. (n.d.). Frequently Asked Questions. Bylawbc.ca. Retrieved on March 12, 2024 from https://www.bylawbc.ca/faq.htm

Lundquist v Central Kootenay (Regional District), 2019 BCSC 1303 (CanLII). https://canlii.ca/t/j1tsq

Novakowski, M. (2016, April 4). Implied Licence to Knock Requires Careful Analysis. Blue Line. https://www.blueline.ca/implied_licence_to_knock_requires_careful_analysis-3502/

Offence Act, RSBC 1996, c. 338. https://canlii.ca/t/54cb4

Office of the Ombudsperson. (2015). Bylaw Enforcement: Best Practices Guide for Local Governments (Special Report No. 36). https://bcombudsperson.ca/assets/media/Special-Report-No-36-Bylaw-Enforcement-Best-Practices-Guide-for-Local-Governments.pdf

R. v. Bichel, 1986 CanLII 102 (BC CA). https://canlii.ca/t/1nnxr

R. v. Mulligan, 2000 CanLII 5625 (ON CA). https://canlii.ca/t/1f9z0

SmithValeriotte Law Firm LLP. (2020, November 29). If a By-law Enforcement Officer Comes To My Door, Do I Have To Let Them In? SVLaw.ca. https://www.svlaw.ca/blog/details/item/by-law-officer-my-rights

The Constitution Act, 1982, Schedule B to the Canada Act 1982 (UK), 1982, c 11. https://canlii.ca/t/ldsx

Vancouver Charter, SBC 1953, c 55. https://canlii.ca/t/56604