Trespassing at Night (Offence)
|Trespassing at Night|
|s. 177 of the Crim. Code|
|Election / Plea|
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|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||six months jail and/or a $5,000 fine|
Offences relating to trespassing at night are found in Part V of the Criminal Code relating to "Sexual Offences, Public Morals and Disorderly Conduct".
|Crown Election|| Defence Election|
|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.
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.
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.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
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.
Proof of the Offence
Proving trespassing at night under s. 177 should include:
Interpretation of the Offence
"Loitering" is purposeless wandering about the area. It includes standing idly around, hanging around, lingering, sauntering, dawdling.
"Rowling" is conduct with a specific unlawful goal.
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)
R v Dillon,  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)
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.
Burdens and Onuses
The burden is on the defence to prove a lawful excuse.
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.
- R v Andsten (1960), 128 CCC 311 (BCCA)(*no link)
- R v Johnson, 1985 CarswellBC 680 (BCPC)(*no link)
R v Mosgrove,  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
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
|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.
These offences have no mandatory minimum penalties.
s. 718.3, 787
| Custody and
| Custody and
| Conditional |
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).
- see also: Trespassing at Night (Sentencing Cases)
Ancillary Sentencing Orders
|SOIRA Orders||s. 177||
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
|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 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.|