Animal activists in Canada have a guaranteed (but not unrestricted) right to freedom of expression under section 2(b) of the Canadian Charter of Rights and Freedoms.
One of the restrictions on the right of freedom of expression is that, generally speaking, the right does not extend to private property. The purpose of this article is to explain to activists that property that may look exactly like a public sidewalk or roadway may actually be private strata property.
British Columbia has a system of property ownership called strata developments. The governing statute is the BC Strata Property Act – and its Regulations – but initially it was the Condominium Act. This is why these properties are often still called “condos”.
Especially if you do activism in an urban area, it is very likely you will encounter strata property. There are huge numbers of strata developments in BC – as of September 1, 2019, there were 32,218 filed strata plans and 671,351 active strata lots.
The essential feature of a strata development is that it must include some property owned in common by all the strata lot owners – called “common property”. A strata plan creates strata lots owned individually by the strata lot owners and it also creates common property, owned collectively by the strata lot owners.
In a residential strata development, the common property would include the exterior yard, underground parking, storage lockers, elevators, lobbies, utility rooms, recreation areas – even the exterior shell of the building.
Let’s consider a commercial strata development – a hotel with street-level stores and a driveway leading to underground parking. Although the driveway and sidewalk fronting the stores are technically open to the public, they are very likely common property of the strata development – that is, private property.
Section 2(1) of the BC Trespass Act prohibits trespassing and makes it an offence:
2 (1) ….. a person who does any of the following commits an offence:
(b) enters premises after the person has had notice from an occupier of the premises or an authorized person that the entry is prohibited;
(c) engages in activity on or in premises after the person has had notice from an occupier of the premises or an authorized person that the activity is prohibited.
Section 4 of the Trespass Act allows notice under (b) and (c) to be given orally or in writing.
Looking again at our hotel strata development, the public is invited to enter the common property for the purpose of pay parking and shopping, but likely not for the purpose of animal activism. If an activist is asked to leave common property but refuses to, that is an offence under the Trespass Act:
2(3) …..a person who has been directed, either orally or in writing, by an occupier of premises or an authorized person to
(a) leave the premises, or
(b) stop engaging in an activity on or in the premises
commits an offence if the person
(c) does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving the direction, or
(d) re-enters the premises or resumes the activity on or in the premises, as applicable.
So animal activists proposing to carry out activism at a specific location must first determine the status of the property – although it looks like a public roadway or a public sidewalk, is it in fact private strata property?
Unfortunately that is not an easy question to answer. The easiest route would be to engage a lawyer or land title agent to obtain and review the strata plan which is prepared by a land surveyor and which shows the exact dimensions of the strata lots and common property, but that will be expensive. Perhaps the best way is to telephone the business and ask what is common property and what is public property, or simply plan to hold the event on property that is clearly public property.