Trespassing and Prowling by Night Lawyer

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.

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 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.