Trespassing at Night (s. 177) Charges in Canada: Offences, Defences, Punishments

What is Trespassing at Night?

Trespassing at night is a criminal offence in Canada, covered under s. 177 of the Criminal Code.

As the name suggests, trespassing at night involves standing around, walking through, or otherwise loitering on another person’s property at night. However, the offence is not necessarily as simple as that. The Criminal Code provision states that the offence is for people who ‘loiter’ or ‘prowl’ at night on the property of another person. While loitering and prowling both generally tend to have more negative connotations, loitering in this context just means standing or hanging around purposelessly. You do not necessarily have to have bad intentions in order to fit the elements of this offence.

Likewise, while most people would consider ‘night’ to be from dusk to dawn, for the purposes of this offence, night is defined as the period between 9:00pm and 6:00am the next day (see s. 2 of the Criminal Code). This applies despite the fact that in Canada, it can often be dark before 9pm or light before 6am.

Examples

Some examples of trespassing at night might include the following:

• Hiding in someone’s backyard to spy on them
• Mistakenly entering onto someone else’s property
• Hanging out in a person’s backyard after they’ve asked you to leave

Defences

Depending on the circumstances, there are several defences to a trespassing at night charge.

They might include some of the following:

• Charter defences
• Lawful excuse
• Not near a dwelling-house
• Not at night

Punishment

The offence of trespassing at night is punishable by summary conviction in Canada. This is less serious than an indictable offence but can still carry with it important consequences. The maximum sentence for a summary conviction offence is two years less a day in prison or a fine of up to $5,000. Generally, the circumstances of the offence will determine the punishment sought by the Crown prosecutor.

However, even beyond the potential prison/fine, a conviction for trespassing at night can carry with it significant consequences. Most importantly, you could have a criminal record, which can impact you for the rest of your life. It may come up on background checks or limit your ability to gain employment in the future.

If you have been charged with trespassing at night, or fear that you might be, the best course of action is to contact an experienced criminal defence lawyer immediately and get legal advice. You can book a free consultation with Strategic Criminal Defence online or over the phone to get free legal advice.

Overview of the Offence

S. 177 of the Criminal Code states the following:

Remember that in any criminal prosecution, the Crown bears the burden of proof. This means that it falls to the Crown to prove, beyond a reasonable doubt, that you committed the offence in question. To do so, the Crown must prove the components of the offence:

• That the accused ‘loitered’ or ‘prowled’ on another person’s property;
• The alleged behaviour took place at night (between 9pm and 6am);
• There was no lawful excuse;
• The trespassing took place near a dwelling-house;
• The property belonged to another person.

Defences

The defences available to a person charged with trespassing at night will vary depending on the facts alleged by the charge. Nevertheless, there are several defences that may come up with regularity in a trespassing at night charge:

Charter Defences

If the police violated your Charter rights during your arrest or during the investigation, you may be able to ask to have certain evidence excluded as a result. However, Charter jurisprudence can be quite complicated. If you feel your Charter rights were violated, you should contact a criminal defence lawyer for advice.

Lawful excuse

S. 177 notably creates an exception for people who trespass with a ‘lawful excuse.’ In most examples, this will be permission from the owner. This often comes up when a person is given permission to come onto the property for a specific purpose, but stays beyond that purpose, or is given permission but then that permission is later revoked.

Not a dwelling-house

S. 177 also states that the trespassing must take place near a dwelling-house. This could come up in scenarios where a person is trespassing on a larger property, such as a homestead or a farm. If the person is on the farm, but not near the dwelling-house, they may be charged with other trespassing offences, but likely not trespassing at night.

Not at night

As alluded to above, the Criminal Code defines night as 9 pm to 6 am. This could mean that despite trespassing on someone’s property while it is dark, you may not necessarily have done the trespassing ‘at night.’ This can be a double-edged sword, however; you may enter someone’s property while it is light out, but it could still meet the definition of night under the Criminal Code. Nevertheless, time is very important.

Punishment

As outlined above, trespassing at night is an offence punishable by summary conviction in Canada. This means that the maximum punishment is two years less a day in prison, or a fine up to $5,000. Furthermore, there is no minimum punishment for trespassing at night defined in the Criminal Code. The jeopardy any one individual faces in their trespassing at night charge will be highly dependent on the circumstances of the (alleged) charge.

Nevertheless, there are significant potential consequences not including the fine or prison term stated above. There may be a victim fine surcharge imposed, which can further increase the total fine amount. You may also face having a criminal record. This can be a hugely negative consequence, as it can impact background checks, your ability to work or volunteer in certain sectors, and can mean you will face more serious consequences for future criminal charges.

It is also important to note that if the alleged trespassing at night is related to a SOIRA (Sex Offender Information Registration Act) offence, you may face as an additional penalty a SOIRA order.

Frequently Asked Questions

What is the penalty for trespassing at night in Canada?

The penalty for trespassing at night in Canada will depend highly on the circumstances of any one individual charge. The more serious, the more likely the Crown will seek the maximum penalty, which is two years less a day in prison and/or a fine of up to $5,000. You may also have a criminal record if you are convicted.

For a more detailed answer, see the ‘punishment’ section above.

Can you stop someone from trespassing on your property?

A property owner in Canada has several options for stopping someone that is trespassing on their property. S. 35 of the Criminal Code, titled the ‘defence of property’ section, creates a defence for people who commit a criminal offence while acting in defence of their own (or another’s) property. The section requires you to believe that the person trespassing is doing so to damage, destroy, or take the property in question. Importantly, the section does not create a ‘blank cheque’ for removing people from your property.

Is trespassing at night a serious offence?

Yes, trespassing at night is a serious criminal offence. While the penalty is lower than other, more serious offences, it can still carry with it serious consequences. These can include up to two years less a day in prison, fines, and potentially a criminal record. If you have been charged with trespassing at night, you should contact a criminal defence lawyer as soon as possible.

Again, for a more detailed answer, see the ‘punishment’ section above.

Published Decisions

R v Walczak, 2008 ONCJ 70

In this case, Mr. Walczak was accused of trespassing at night (known as prowling at night at this time), when he allegedly jiggled the doorknob of the complainant’s home before running away down the road. The judge, after making determinations regarding the credibility of the various witnesses, notes that ‘prowling’ does not require the intent to commit an underlying offence. However, the judge notes that because Mr. Walczak did nothing more than enter the property and briefly trying the locked door in a state of drunken confusion before retreating, his conduct did not rise to ‘loitering’ or ‘prowling,’ and he was acquitted. This is an important distinction: this case tells us that you do not need to have bad intentions, but at the same time, conduct more than just briefly entering the property is required to meet the definition of criminal trespassing at night.

You can read the full decision here.

R v Rhodes, 2022 ONCA 705

This case is an appeal from trial, where Mr. Rhodes was convicted of trespassing at night, among other offences. He was found lurking in the backyard of the complainant, trying to photograph her while undressing in her home. This is thus an example of a case where there was an underlying intent to commit other offences, but as noted above, this changes nothing for the purposes of trespassing at night. Mr. Rhodes was convicted because, upon reviewing the complainant’s security camera footage, he remained in the backyard for much of the day and evening. The police were called at around 11:30pm, meaning that it qualified as ‘night’ for the purposes of the offence. Mr. Rhodes also attempted to bring Charter challenges on both his arrest (under s. 9) and to the search warrant that was obtained for the phones (s. 8). Both are not really material to the trespassing at night charge, however. Mr. Rhodes’ conviction appeal was dismissed, and his sentence of 18 months in prison was upheld (he was convicted of three offences, and sentenced to 18 months for each, to be served concurrently).

You can read the full decision here.

R v Stewart, 2004 CanLII 5541 (NL PC)

In this case, Mr. Stewart plead guilty to three counts of trespassing at night. He prowled on the properties of three women and caused minor property damage to a local Anglican church as well. He was sentenced to 30 days for each of the offences, to be served concurrently. This represents a sentencing range that was common (30 days per offence appears in the cases of R v Blaisdell, 2001 PESCAD 5 and R v Hawes, 1994 CanLII 4017 (NSCA)). However, as these cases are quite dated, the ranges have shifted somewhat in recent times. This is evidenced by R v Rhodes above. Nevertheless, 30 days may serve as a form of base guideline.

You can read the full decision here.