Legal Issues

Daniel Rechtshaffen

I am a criminal defence lawyer practicing in Toronto, Canada. For as long as Ive been practicing law, I have also been fanatical about contemporary art, particularly street art. If youre reading this book, presumably you share my enthusiasm. Unfortunately, sometimes the police are not such big fans of this type of work. What I hope to do is explain the laws dealing with graffiti and other forms of street art, so you can understand the risks that can arise when creating public works of art. In looking at the range of potential offences, I will explain what elements constitute each offence, what the potential punishments are, and most importantly, what your rights are when being approached by the police. The law is complex and constantly evolving, and I will provide the most accurate account of the law as of the time of writing. It cannot be overemphasized however, that every situation has unique facts, and gives rise to its own specific issues and potential defences. Even with a crystal clear understanding of

the laws created by Parliament, and the ways that those laws have been interpreted by the Appeal Courts and the Supreme Court of Canada, I cant guarantee how the judge trying one of my clients cases will apply those laws. Slightly different words and actions can often lead to very different results. Needless to say, this information I am providing does not constitute legal advice; any lawyer providing such advice would need to know all the details of a particular case. If charged, its wise to consult a lawyer in the province where the allegations arise. In the course of painting pieces, tags or stencils, or doing paste-ups or otherwise modifying the urban landscape, the typical charges that one could face include mischief to property, breaking and entering, and trespassing. The first two of those offences are Criminal Code violations, while the last is an offence under the Trespass to Property Act (this statute applies in Ontario; equivalent statutes apply in other provinces). Trespassing is not a criminal offence, but it can result in your arrest.

When it comes to trespassing, the police cannot arrest you just because you are on another persons property. There are prerequisites to being in violation of the Act. Before I explain the police powers, it should be noted that certain police officers can and will arrest you even if you do not meet the legal criteria for arrest. Some officers have the mentality that theyll charge you first and let the courts sort it out later. If you are engaging in a criminal act on the property, the officer can arrest you under the Criminal Code, and the fact that you might have been trespassing is typically moot. If you are found on private property, and you are not engaged in an observable criminal act, you do have certain rights. For the powers of arrest to engage, you have to be first placed on notice that you are trespassing. This can happen in a number of ways. First, you may have been told on a previous occasion (previous can mean moments before), orally or in writing, either by the property owner or by police, that you are not permitted on the property. If you are seen on

the property after that occurs, you can immediately be arrested. This also means that if you are being told for the first time that you are not allowed on the property (and none of the other arrest prerequisites described below apply) you must be given the opportunity to leave. Second, there may be a sign posted so that it is clearly visible in daylight under normal conditions from the approach to each ordinary point of access to the premises. If these signs are present (and these can include rudimentary red circles with a drawing of the prohibited activity with a slash through it), you are deemed to be on notice that you cannot be on the premises. Third, if the premises is a garden, lawn or other open area, or is enclosed in a manner that indicates the owners desire to keep people out, you do not need to be put on notice to be trespassing. Finally, if a police officer believes on reasonable and probable grounds that you have just trespassed (and can therefore be

charged under the Act), and you refuse to give your name and address, you can be arrested even if you are no longer at the scene of the trespassing. You may be searched incident to your arrest, but there are limits. Typically, if you are going to be released by the police (rather than held for bail), you should not be strip searched, for example. If you are not yet under arrest, but are being legitimately detained for investigation, the police may search you for weapons. Typically, this search should be of the pat-down variety, and should not include going through your pockets, unless the pat-down revealed something that could reasonably be said to feel like a weapon. If the police claim to have seen you conceal something that was being used in the commission of an offence (e.g., they see you standing in front of a mural with fresh paint and see you stashing a spray can in a bag,) they may be entitled to search that personal property. The specifics of exactly what observations entitle the police to detain and investigate are very much fact-driven, and constitute too broad a topic to cover in this paper. This brings me to another important point. There is no obligation, if you are not arrestable under the Trespass to Property Act, Criminal Code or other statute, to provide a name or an address to the police. Furthermore, if the police do intend to charge you, you are entitled to be told immediately what it is with which you are being charged. You are also entitled, upon being detained, to be put in contact with the

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Ted Rickard | Legal Issues

Legal Issues | Ted Rickard

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