Criminal Code of Canada - section 443(2) - Saving provision

section 443(2)

INTRODUCTION AND BRIEF DESCRIPTION

Land surveyors do not commit an offence if they take up and replace a boundary marker when necessary or establish a permanent record of its original position if it will be impossible or impracticable for the marker to remain in place.

SECTION WORDING

443(2) A land surveyor does not commit an offence under subsection (1) where, in his operations as a land surveyor, (a) he takes up, when necessary, a boundary mark mentioned in paragraph (1)(b) and carefully replaces it as it was before he took it up; or (b) he takes up a boundary mark mentioned in paragraph (1)(b) in the course of surveying for a highway or other work that, when completed, will make it impossible or impracticable for that boundary mark to occupy its original position, and he establishes a permanent record of the original position sufficient to permit that position to be ascertained.

EXPLANATION

Section 443(2) of the Canadian Criminal Code provides exemptions to land surveyors for taking up boundary marks. Subsection (1) of this section makes it a criminal offence to take or remove a boundary mark placed by the owner of an estate. However, land surveyors are permitted to take up boundary marks if it is necessary for them to do so in their operations as a land surveyor, or if they are surveying for a highway or another work that makes it impossible for a boundary mark to remain in its original position, and they establish a permanent record of the original position. What this means is that land surveyors are allowed to temporarily remove boundary marks if it is necessary for them to do so in the course of their work. For example, if there is a boundary mark in the way of a new road that needs to be built, the land surveyor can remove it as long as they establish a permanent record of the original position. In doing so, they must ensure that the boundary mark is carefully replaced as it was before it was taken up. This exemption is in place to ensure that land surveyors can carry out their work without fear of being charged with an offense. It also ensures that property owners are protected by requiring the land surveyor to leave the boundary mark in its original position or record its position accurately for future reference. This section is an essential part of the Canadian Criminal Code, enabling land surveyors to conduct essential work without undue interference or fear of prosecution.

COMMENTARY

Section 443(2) of the Criminal Code of Canada provides an exemption to land surveyors who take up a boundary mark in the course of their work. The exemption ensures that land surveyors are not prosecuted for an offence under subsection (1) of Section 443, which prohibits the removal or destruction of a boundary mark, if they have taken up the mark in a careful manner. There are two scenarios under which a land surveyor may take up a boundary mark and be exempt from prosecution, which are discussed below. The first scenario under which a land surveyor is exempt from prosecution is when he takes up a boundary mark and carefully replaces it as it was before he took it up. This scenario allows the land surveyor to remove a boundary mark, but he must ensure that the mark is replaced in the same position and condition as it was before he took it up. The requirement of careful replacement ensures that the boundary mark is not damaged or destroyed in the process, and that the boundary remains accurate. This scenario recognizes that, in some cases, it may be necessary for a land surveyor to remove a boundary mark to properly perform his duties. For example, if the mark is obscured by vegetation or soil, the land surveyor may need to remove it temporarily to determine its location and condition. The second scenario under which a land surveyor is exempt from prosecution is when he takes up a boundary mark in the course of surveying for a highway or other work that, when completed, will make it impossible or impracticable for that boundary mark to occupy its original position, and he establishes a permanent record of the original position sufficient to permit that position to be ascertained. This scenario recognizes that, in some cases, the construction of new infrastructure may require the removal of boundary marks that cannot be replaced due to changes in the land or other factors. The land surveyor must record the original position of the boundary mark, both for historical accuracy and to ensure that the new infrastructure does not encroach on other properties. The requirement for a permanent record ensures that the boundary mark's original position can still be ascertained even if the mark itself is no longer present. In conclusion, the exemption under Section 443(2) of the Criminal Code of Canada recognizes the important role that land surveyors play in accurately determining property boundaries and performing their duties. The exemption allows them to remove boundary marks, under certain conditions, without fear of prosecution. However, it also ensures that the boundary marks are replaced or recorded in a manner that preserves the accuracy of property boundaries.

STRATEGY

Section 443(2) of the Criminal Code of Canada provides protection to land surveyors who may come across boundary marks while conducting their operations. This protection ensures that they are not found guilty of an offence under subsection (1). The strategic considerations that should be taken into account when dealing with this section of the Criminal Code of Canada are numerous. First, when a land surveyor encounters a boundary mark mentioned in paragraph (1)(b), they should be careful to replace it as it was before they took it up when necessary. This is important because failure to do so may lead to civil litigation, which can be costly and time-consuming. Additionally, the land surveyor should ensure that they follow the proper procedures when taking up the boundary mark, to avoid any disputes with the party that placed the boundary mark in the first place. Second, if a land surveyor takes up a boundary mark in the course of surveying for a highway or any other work that makes it impossible or impracticable for the boundary mark to occupy its original position, they must establish a permanent record of the original position sufficient to permit that position to be ascertained. This is important because it ensures that the original location of the boundary mark is known and recorded, which minimizes the risk of any disputes arising in the future. Third, it is important for the land surveyor to maintain accurate records of all their operations, ensuring that they are able to produce evidence to support their actions if challenged in the future. This can be achieved by maintaining detailed survey notes, maps, and other relevant documentation. Fourth, because each situation and location is unique, it is important for land surveyors to be knowledgeable about the relevant legislation and the specific local regulations that apply to their operations. This knowledge will allow them to make informed decisions about the best course of action, ensuring that they comply with all relevant laws. Finally, it may be wise for land surveyors to consider obtaining professional liability insurance to protect themselves in the event of any disputes or legal action. This insurance can provide coverage for legal fees and other costs associated with litigation, reducing the financial risk that the land surveyor may face. In conclusion, to deal with Section 443(2) of the Criminal Code of Canada effectively, land surveyors should take a strategic approach, considering factors such as accurate record-keeping, compliance with relevant legislation and local regulations, and obtaining professional liability insurance where possible