Trespassing at Night (Offence)

Trespassing at Night
	s. 177 of the Crim. Code
Election / Plea
Crown Election	Summary; summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court only
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	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Reference
	Offence Elements; Sentence Digests;

< Criminal Law/Sentencing
< Offences

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)

Offences under s. 177 [trespassing at night] are straight summary conviction offence. The trial must be held in provincial court.

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By 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]	Template:ReleaseProfileNoID

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

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 177 [trespassing at night]

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

Offence Wording

Trespassing at night

177 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.
R.S., 1985, c. C-46, s. 177; 2018, c. 29, s. 14.

– CCC

Proof of the Offence

Proving trespassing at night under s. 177 should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "loitered" or "prowled"; the prohibited act was ☐ "at night"; ☐ "on the property of another person"; and ☐ "near" a "dwelling-house"; and ☐ 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]

↑ 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, [1964] 3 CCC 205 (Alta. S.C. App. Div.), 1964 CanLII 678 (AB CA), per McDermid JA
Cloutier, supra
R v Walczak, 2008 ONCJ 70 (CanLII), per Green J
R v Priestap, 2006 CanLII 12288 (ON CA), per Lang JA

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]

↑ 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, [2014] 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

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	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

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 [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).

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 [trespassing at night]	On conviction under s. 177 [trespassing at night] , listed as a "secondary offence" under s. 490.011(1)(a), 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 the offender was subject to a SOIRA Order anytime prior to sentencing, 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	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	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.