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Defend Prowling by night

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Frequently Asked Questions

When you hear the word trespassing, you might commonly imagine somebody creeping around your residence with negative intentions. For the crime of trespassing at nighttime, it is important to note that it is the act of prowling or loitering itself that is punishable by law, and not what is done while the person is prowling near someone’s property at night.

Trespassing at nighttime is different and seen as “worse” than other forms of trespassing, such as trespassing in the day, because it occurs during a time when people are more vulnerable and expect privacy as they are sleeping. Trespassing might include acts like refusing to leave the area when asked to do so by the landowner.

What does trespassing at nighttime mean?

An individual loitering or prowling near someone’s residence between 9:00PM and 6:00AM could be charged with the offence of Trespass at Night. It is sometimes referred to as loitering or prowling at night.

More specifically, Section 177 of the Criminal Code states, “Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.

In the context of criminal law, trespassing is the act of accessing or remaining on someone else’s property without that person’s consent or a valid reason. An example might be a scenario in which a trespasser remains on someone’s property despite the property owner asking the trespasser to leave.

Generally speaking, trespassing entails entering someone else’s land or property without authorization. It may or may not encompass carrying out illegal activities on the property. However, this is not a required element of the crime trespassing at nighttime.

What is the purpose of this legislation?

Trespassing laws are meant to give property owners a level of control and/or authority over their land, such as their house or buildings. These laws serve to ensure that people do not violate the landowners’ rights and that people respect the boundaries of the owners of private property. As such, trespassing laws ultimately serve to support the enforcement of landowner’s rights and serve as a way to safeguard these owner’s safety and privacy, as well as their personal belongings.

As seen in several of Canada’s provinces, trespassing is governed by both federal and provincial laws. The laws that govern the offence of trespassing and related offences are outlined in specific trespass statutes, such as the trespass statutes in British Columbia for example.

These provisions are meant to offer provide some sort of comfomrt, through the criminalization of conduct that involves trespassing at night by a person who is upon or near a dwelling without a legitimate, authorized purpose. This is because privacy and security concerns are typically heightened at night.

It is significant to remember that in this legal context, “night” refers to the hours after 9:00 PM to 6:00 AM the next morning. Given that privacy and security concerns are usually at their highest at night, trespassing at night is particularly punishable by law. It is significant to remember that this definition and criteria for trespassing at nighttime is applicable at all times of the year, even though Canada’s seasons might cause the duration of “darkness” to fluctuate.

Why is this crime specific to the nighttime?

The assertion that provisions criminalizing night-time trespassing aim to address heightened privacy and security concerns during the night is supported by crime statistics in Canada. Police-reported crime data indicates that certain types of crimes, particularly those involving property, are more prevalent during night hours. For instance, breaking and entering incidents, a significant portion of property crimes, have consistentlydemonstrated patterns indicating that they occur more frequently at night. Moreover, in 2022, the rate of breaking and entering increased by 4%, highlighting its continued prevalence as a common crime. This offence is one measure to prevent these kinds of break-ins from happening.

Further supporting this, the Criminal Code of Canada specifically targets night-time trespassing to deter behaviours that could lead to more serious offences, like burglary. Section 177 of the Criminal Code exemplifies how important it is to maintain security and deter people from committing unauthorized actions through their presence on private property during the night​ (Criminal Code of Canada)​. This legal framework is important as night-time conditions often embolden criminal activities due to reduced visibility and increased opportunities for undetected movement.

Crimes like breaking and entering have shown to remain a major concern, especially in urban centres. As a measure to enhance public safety, trespassing at nighttime aims to avoid suspicious conduct on people’s personal property since it could be a prelude to other criminal activity.​ (Statistics Canada)​. This correlation between night-time and heightened crime activity shows how important and necessary it is to have and enforce laws that protect individuals and their properties during these vulnerable hours.

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What are some examples of trespassing at night?

The common theme in crimes of trespassing at night all typically involve the implications of having someone’s unauthorized presence on another individual’s private property during the night. One example might include an individual hiding in another person’s backyard to spy on them. This behaviour is an intrusion of privacy, but might also be seen as a prelude to more serious criminal activity. For example, a person monitoring someone’s sleeping habits and patterns at night through their backyard might then use these patterns to find an optimal time to break into their home.

These kinds of actions are exactly examples of what the law aims to deter. Such conduct has the potential of inflicting significant fear and psychological distress to property owners. The case of R v. Rhodes, where an individual was found photographing someone in their home from their backyard at night, exemplifies the crime of trespassing at night.

A second example might involve mistakenly entering onto someone else’s property. While this might happen accidentally, the law requires individuals to provide a lawful excuse for their presence. If someone is found wandering on private property at night without a clear reason, it might lead to legal consequences, because it is up to the accused to provide a defence to demonstrate that they had a lawful purpose to be on that property at that time.

A third example is hanging out in a person’s backyard after they have already asked you to leave. Ignoring a property owner’s direct request to leave their premises constitutes trespassing. This is especially serious at night, when security concerns are heightened. Even without the intent to commit a further offence, such behaviour is enough to constitute this offence.

What’s a Crime in Canada?

What if I did not cause any harm to the owner or their property/dwelling?

The real damage is that the individuals feel that their privacy has been invaded while they are at their home, lowering their sense of safety and comfort. So, this offence does not necessarily require that the perpetrator did something wrong while they were loitering on the property.

What are the possible penalties I could face if convicted of trespassing/loitering/prowling at night?

The offence maximum sentence is two years in jail. In certain circumstances, the accused might face negative consequences even if there is minimal harm done. Probations and fines might be another kind of penalty imposed on people who have committed the offence of trespassing at night.

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Recent Cases

R v B.P., 2006 CanLII 12288 (ON CA)

In this case, respondent B.P. was found guilty of prowling at night under section 177 of the Criminal Code after having been originally found not guilty of criminal harassment. Probation and a suspended sentence were handed down by the trial judge. Upon B. P.’s appeal, the summary conviction appeal court overturned the conviction and mandated that the Crown provide evidence of their deliberate purpose to perform a particular bad act. This ruling was appealed by the Crown.

The case’s facts include an occurrence in which the complainant discovered B. P. late at night in her property. He said he was searching for some marijuana he had heard was reportedly blooming nearby. This answer was dismissed by the trial judge as ridiculous because the complainant’s garden is clearly separated from other places. B. P.’s cunning actions qualified as prowling, and he was unable to offer a valid justification.

The main legal issue raised by the appeal concerned whether the Crown had to demonstrate that a particular heinous act was intended in order to get a conviction for nighttime prowling. According to the Court of Appeal, this kind of condition was incorrect. The Court has made it clear that, for the purposes of section 177, it was necessary to demonstrate that the prowler had engaged in stealthy, covert movement. Even if there is an absence of a harmful motive, the law makes such loitering behaviour illegal in order to protect everyday people from the discomfort these intrusions generate.

The Court reinstated the conviction, emphasizing that prowling at night, as defined by section 177, inherently suggests an intent to avoid detection and possibly engage in reprehensible acts. This decision aligns with the purpose of the statute to prevent disorderly conduct, including “peeping tom” behaviour, and ensures residential protection from such invasive actions.

This case remains applicable today because it clarifies the interpretation of section 177 of the Criminal Code, establishing that the Crown does not need to prove a specific negative or harmful intentions for a prowling conviction. This precedent guides the application of the law in similar cases, ensuring that the focus remains on the conduct of prowling itself rather than an underlying specific intent​​.

R. v. A. M., 2024 MBPC 41

A. M. was charged with Trespass at Night amongst other offences after an incident which involved A. M. and another individual being spotted acting suspiciously in backyards on a specific street in Winnipeg. When approached by police, A. M. fled in a vehicle, leading to a high-speed chase.

According to section 177 of the Criminal Code, someone must loiter or prowl on another person’s property close to a residence at night time without a lawful justification in order to be charged with prowling at night. The Court had to decide if A. M.’s acts was considered to be an offence. According to the police officers’ testimony, they saw two men—among them A. M.—coming out of a backyard with objects in their arms. When A. M. spotted the police, he drove off in a car, which resulted in his detention later that evening. The Court found the identification of A. M. as the driver during the incident to be credible, based on the detailed observations made by the officers during the chase.

However, regarding the prowling charge, the Court was not convinced beyond a reasonable doubt that the property A. M. was seen on was not his own or that he lacked a lawful excuse to be there. Therefore, A. M. was acquitted of the prowling charge. The Court emphasized that the Crown needed to prove that A. M. did not have a lawful excuse for being on the property, which they did not do.

This case shows us the fairly rigorous requirements for proving the offence of prowling at night. The requirements of proving this offence involves establishing the lack of a lawful excuse for the trespasser being at that area, as well as the demonstrating the specific location of the offence relative to the accused’s rights to the property. The ruling shows us the importance of robust and clear evidence in distinguishing between lawful and unlawful presence on a property at night, ensuring that charges of prowling are substantiatedby sufficient evidence.

Ultimately, this case reaffirms the legal standards for prowling at night under section 177, ensuring that individuals are only convicted when there is sufficiently robust evidence of their negative intent and presence on another’s property.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.