Trespassing at Night (Offence)
|Trespassing at Night|
|s. 177 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 12 months of the offence (786(2))
|Jurisdiction||Prov. Court only|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 Ancillary Sentencing Orders
- 8 Record Suspensions and Pardons
- 9 History
- 10 See Also
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)|
Offences under s. 177 [trespassing at night] are straight summary conviction offence. The trial must be held in provincial court.
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a Release Order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 177 [trespassing at night]||(summary offence)|
When charged under s. 177 [trespassing at night] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Publication Bans
For all criminal or regulatory prosecutions, 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
|AG Consent Required||Serious Criminality|
s. 36 IRPA
|s. 177 [trespassing at night]|
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|177||loitering at night
prowling at night
|"did unlawfully, without lawful excuse, did [loiter or prowl] night on the property of another person near a dwelling-house situated on that property, to wit: [address], contrary to section 177 of the Criminal Code. |
Proof of the Offence
Proving trespassing at night under s. 177 should include:
Interpretation of the Offence
- Defined Terms
"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.), 1987 CanLII 6851 (BC SC), per Murphy J
R c Cloutier, 1991 CanLII 2831 (QC CA), per Chevalier JA, at para 154
R v Lozowchuk, 1984 CanLII 2639 (SK QB), per Geatros J
R v Dillon,  3 CCC 205 (Alta. S.C. App. Div.), 1964 CanLII 678 (AB CA), per McDermid JA
R v Walczak, 2008 ONCJ 70 (CanLII), per Green J
R v Priestap, 2006 CanLII 12288 (ON CA), per Lang JA
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), 1960 CanLII 457 (BC CA), per Sargent J
- R v Johnson, 1985 CarswellBC 680 (BCPC)(*no CanLII links)
R v Mosgrove,  O.J. 6064 (O.C.J.), 2014 ONCJ 677 (CanLII), per Marion 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
- 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
s. 606(4.1), (4.2)
|Victim Notice |
of Impact Statement
|s. x [x]|
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
|s. 177 [trespassing at night]||N/A||2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)|
Offences under s. 177 [trespassing at night] are straight summary conviction offences. The maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Dispositions
s. 718.3, 787
|s. 177 [trespassing at night]||N/A|
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
- Offence-specific Orders
|SOIRA Orders||s. 177 [trespassing at night]||
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||A discretionary order prohibiting the offender from communicating with named persons while he is 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 (s. 737)||any||A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
- 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.|
Record Suspensions and Pardons
Convictions under s. 177 [trespassing at night] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".