RE: Wireless Security (Part 2)

["Craig Wright" <cwright () bdosyd com au>]

Hi
Nothing to do with a theological discussion, it is (the issue of natural
rights) a philosophical discussion.

This is the difficultly of answering one issue in law on the list. Under
the "TRESPASS TO PROPERTY ACT" in CA, trespass has not been repealed as
a criminal offence.

Even in this case though you had better hope for a conviction...

Still it is just reasonable force, not anything you like

Regards,
Craig

-----Original Message-----
From: Ian Scott [mailto:ian () pairowoodies com]
Sent: Wednesday, 24 May 2006 4:47 PM
To: security-basics () securityfocus com
Cc: Craig Wright
Subject: Re: Wireless Security (Part 2)

On May 23, 2006 06:08 pm, Craig Wright wrote:
> In respect of "natural rights" and the "founding fathers" - well this
is
> technically correct as all law is (supposedly) based on "natural
> rights". "Natural rights" are those rights that reflect the
> interpretation of the law of God (just the messenger here).

:)  Well, theological discussions are probably best left for a different
list.
However, the founding fathers were "Deists" mostly, and didn't recognize
a
"law of God" as organized religion does - it was more a "law of God" in
respect to an individual's own interpretations and peace of mind with
whatever God they worshipped.  It was for the individual to choose and
all
others had no business imposing their will on any one with regard to
anything
consentual.

> Trespass is a "wrong". It is not only property but also goods and the
> person. Assault and Battery for example is a trespass.

Technically speaking, yes.

> "I have every right to make an arrest and determine the identity of
that
> person, even if they attempt to flee" - actually trespass to land is
no
> longer a crime but only a civil tort.

Not in all jurisdictions. It is not "criminal" in my jurisdiction
(Canada) as
property laws are not governed federally, but provincially.  The
Province I
live in, Ontario, recognizes to some degree, property rights (note word
"recognizes."  To me, it matters not if they recognize the right or not
- I
will still excercise, what to me, is my right even when not recognized).
In
Ontario, it is not a "civil tort." It is in fact, governed by Provincial
law
and there are penalties for trespass (generally a small fine, but could
be up
to $1,000.00 and/or jail time if other restrictions have also been
ignored).

> Thus you have no right to arrest
> them if they flee.

Incorrect.  Yes I do.  I spent 20 years in law enforcement in Ontario,
and am
quite proud of my record of having NEVER lost any case in court where I
was
the principle witness.  Even including trespass charges.  And believe
me, I
chased and arrested trespassers that had tried to flee!  Under some
circumstances.

Occupants of real property, OR THEIR AGENTS, may arrest ANYONE who
trespasses
upon the property.  Now.. if You have asked them to leave, and they flee

towards public property, or someone else's property, then usually, you
let
them flee.

HOWEVER, if the person has been advised previously that they are not
welcome
on your property, and they are aware of this, and then  trespass upon
it, you
can chase them all over God's green acres, as long as you do not lose
site of
them for a "fleeting moment," until you have arrested them in order to
have
them charged and hopefully, convicted.


> You have a right to ask them to leave and a right to
> take action in court. If you arrest them you are stopping them from
> leaving and if they only committed a trespass than you will be liable
> (possibly criminally).

Not true.  In Ontario, any occupant of property is entitled to use as
much
force as is necessary in order to arrest a trespasser that:

1.  Has been advised either in letter or orally not to trespass on your
property.

2.  Has trespassed upon your property where signs have been posted.

3.  Engages in any act on the property that you don't want engaged in,
ie.
comes onto your property and disturbs the peace - that in itself is
considered a trespass, whether or not the above conditions are met.

4.  Is asked to leave the property (with none of the three conditions
above
having been met), and refuses to do so.

I will agree.. that if one simply asks a person to leave their property,
and
they do so IMMEDIATELY, then no trespass charge will ever stick..
However, if
any of the above conditions are met, then an occupant OR THEIR AGENT has

every right to chase down and arrest the trespasser and have them
charged by
handing over the trespasser as soon as reasonably possible, to a peace
officer.
> You have the right to make a civil arrest in cases of a crime.

Incorrect.  I have the right to make a citizen's arrest.  In fact, with
regard
to my property, I have more power than a police officer does.  A police
officer CANNOT arrest for trespassing UNLESS the police officer, either
by
letter authorizing the police, or orally at the time of the incident
directly
to the attending police officer, is given "agent status" by the occupant
of
property.

> You may
> only do this after the event (police etc may do this prior).

Actually, this is incorrect.  Police may ONLY arrest AFTER a crime if
there is
a warrant for the arrest of a person first sworn out.

Now, citizens do NOT have the right to arrest for, what in Canada are
called
"summary" conviction crimes, unless.. this is interesting.. it is in
direct
relation to themselves or their property.  This is probably why most
property
crimes are what are called "dual procedure" crimes - they could end up
being
prosecuted EITHER as indicatable OR summary conviction.  Summary
conviction
offences come with a penalty that is less than 2 years less a day.

Citizens, like police, ALWAYS have the right to arrest for any
"indictable"
crime, either while it is occurring, or while in fresh pursuit.

And ANYONE can swear out a warrant for the arrest of someone - if the
Justice
of the Peace accepts the sworn statement.  Once this happens, ONLY the
police
may arrest on a warrant.

But it should be noted that not even the Police can arrest ANYONE for
ANY
crime if they have lost the suspect after a fresh pursuit.  A warrant
must be
issued, even for the Police to arrest.

> If the
> person is not just charged but also convicted, than you will be liable
> (at least in tort if not criminally) for False imprisonment and/or
> deprivation of liberty.

Sure, if the person wishes to sue me, civilly.  Trespass, however, in my

jurisdiction at least, is not "civil."


> In the case of the person breaking into a house, you may take ***
> Reasonable action*** and use reasonable force to eject them.

Incorrect.  I may use AS MUCH FORCE AS NECESSARY.  Both Provincial and
Criminal law recognize my right to use as much force as necessary, in
protecting my property.  Trespass on real property is a Provincial
affair,
but if someone decides to steal my property from me, and I observe that
action take place, the Criminal Code of Canada (sorry, I forget the
Section)
states that I have the right to use AS MUCH FORCE AS NECESSARY to take
my
property back.

Which is actually quite interesting... "pain" does not equate to
"force."  :) 
I can inflict GREAT PAIN on someone, using a minimal amount of force.

All I have to do is justify the force I used to a jury/judge or Justice
of the
Peace.

> The right
> to civil arrest is to hold them for another authority only. This is
the
> police or to take them to a magistrate.

Correct.

Regards,

Ian


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