Trespassing at Night (Offence)

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Trespassing at Night
s. 177 of the Crim. Code
Election / Plea
Crown Election Summary
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court only
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum six months jail and/or a $5,000 fine
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to trespassing at night are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 177 [trespassing at night] Summary Offence(s) N/A No

Offences under s. 177 are straight summary conviction offence. The trial must be held in provincial court.

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 177 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

When charged under s. 177, the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Trespassing at night
177. Every one who, without lawful excuse, the proof of which lies on him, 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.
R.S., c. C-34, s. 173.


CCC

Proof of the Offence

Proving trespassing at night under s. 177 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit "loitered" or "prowled";
  5. the prohibited act was
    1. "at night";
    2. "on the property of another person"; and
    3. "near" a "dwelling-house"; and
  6. there was no "lawful excuse" for the prohibited conduct (including permission from the owner).

Interpretation of the Offence

Defined Terms
"Loitering" is purposeless wandering about the area. It includes standing idly around, hanging around, lingering, sauntering, dawdling.[1]

"Rowling" is conduct with a specific unlawful goal.[2]

  1. R v Willis, (1987), 37 CCC (3d) 184, at 186 (B.C. Co. Ct.)(*no link)
    R c Cloutier, 1991 CanLII 2831 (QC CA) at para 154
    R v Lozowchuk 1984 CarswellSask 268(*no link)
  2. R v Dillon, [1964] 3 CCC 205 (Alta. S.C. App. Div.)(*no link)
    R c Cloutier, supra
    R v Walczak, 2008 ONCJ 70 (CanLII)
    R v Priestap, 2006 CanLII 12288 (ON CA)

Lawful Excuse

A "lawful excuse" must include (1) a reason that is permissible under the law of the land to be on the property and (2) he must carry out his purpose in a lawful manner.[1]

Burdens and Onuses
The burden is on the defence to prove a lawful excuse.[2]

Licence to Enter Property
A person may, by invitation or licence, enter a property for a specific purpose, but the status is lost once they engage in unlawful or unrelated activity.[3]

  1. R v Andsten (1960), 128 CCC 311 (BCCA)(*no link)
  2. R v Johnson, 1985 CarswellBC 680 (BCPC)(*no link)
  3. R v Mosgrove, [2014] O.J. 6064 (O.C.J.) (“A person may also have an invitation or a licence to enter property for a lawful or specific purpose but that status is lost once they engage in activity which is unlawful or unrelated to their anticipated use of the property.”)
    See also Defence of Property

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 177 [trespassing at night] N/A six months jail and/or a $5,000 fine

Offences under s. 177 are straight summary conviction offences. The maximum penalty is six months jail and/or a $5,000 fine.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 177 N/A OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Principles

Ranges

see also: Trespassing at Night (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
SOIRA Orders s. 177
  • On conviction under s. 177, as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years as the offence was "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years".
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order) or 20 years (if life order)

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

General Sentencing Orders

Order Conviction Description
Non-communication order under s. 743.21 any while offender in custody.
Restitution Orders any a discretionary Order on application under s. 738, for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay if before.

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Weapons and Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.

See Also

References