Can you detain a trespasser until police arrive in Canada?

Someone’s on your private property. You’ve told them to leave, and now they won’t. So, you detain them. You hold them. Can you do that? You’re waiting for the police arrive. Your wife has called the police. Can you hold them? Can you detain them? Interesting question.

Now, can you detain a trespasser in that situation? Well, the short answer is, generally no, there’s always exceptions that rule, and I’ll get to them. So, you have to understand that trespass to property is an offense under the trespass to Property Act. That’s not a criminal code offense. It’s a very civil offense where you’re on someone’s property without permission, without their consent, or you’ve entered on the property and told to leave. For example, maybe you get in dispute with your friend at your house, their over dinner, you tell them to leave and they won’t. At that point, they are a trespasser, so you want them to leave. So, what does your wife do? They call the police.

So, you’re waiting for the police. Are you allowed to hold them up? Now they volunteer to leave. No, you can’t, because the thing is, your rights as a citizen, the only right you have as a citizen, well, you can tell them to leave first of all, because it’s your private property. If they’re committing a criminal offense, though, let’s say they start breaking your property, you may very well then have a right for a citizen’s arrest under Section 494 so you can arrest them and potentially detain them, but you’d have to use reasonable force. That’s a situation fraught with difficulty, by the way, because a fight may break out, you might wind up getting charged, but yes, you have the right to arrest them, but, but typically, if they’re a mere trespass or some kids on your lawn, you can’t grab that 12-year-old kid and hold them for the police. You just tell them to leave. Act reasonably in the circumstances.

That’s basically the law in this situation. A lot of people get upset about that, but you have more limited rights in trespass to Property Act. You can only tell them to leave, hopefully they do, hopefully they don’t commit another criminal offense. If they do commit a criminal offense, then you can do a citizen arrest, acting reasonably in the circumstances, pending the arrival of the police. See if you decide to detain a trespasser who’s not doing criminal offenses, you’re the one who’s going to be potentially charged with unlawful confinement, assault or etc.

So, what’s the proper legal advice in this situation if you have a trespasser, first of all, tell them to leave. Second of all, if they don’t leave, call the police. Don’t put your hands on them if they’re not creating a crime or anything like that. You know, wait for the police and hopefully they leave. After they’ve left, you should probably have your lawyer send them a letter not to appear on your property again. If they’re doing a criminal offense on your property. Well, you are entitled to a citizen arrest but that can be fraught with difficulty too, because they may start fighting back when you arrest them, and you might overreact. You might not, you lost self-defense, or he can accuse you of things. It’s just a whole kind of nerve. So, you have to be very careful. You have to act reasonably. But the bottom line here, if a person’s merely trespassing your property, just tell them to leave and don’t start holding them, or you’re the one who’s going to wind up in a heap of trouble. Okay, so sometimes the law in Canada, it’s better to be a little quieter, take your time, use your head, then lose all sensibility and start just grabbing people and holding them and creating problems for yourself. You’ve got a problem with the trespasser now; you’ve created a much more difficult problem of a criminal offense with yourself.