What Does the Prosecution Need to Prove at Trial of Trespass at Night Case?

A Person May Be Found Guilty of Trespass at Night If It Is Proven That the Person Was Loitering or Prowling Near a Residence Between 9:00PM and 6:00AM.

Understanding the Conduct That Legally Constitutes As Trespassing at Night Per Section 177 of the Criminal Code

Prowler at Night

For most people, night fall brings an increased concern for privacy and security, especially upon or near residential premises; and accordingly, for the purpose of providing a sense of personal safety assurance, the Criminal Code of Canada, R.S.C. 1985, c. C-46, includes provisions that are intended to provide comfort by criminalizing conduct that involves trespassing at night by a person who is upon or near a dwelling without a genuine purpose.

The Law

The criminal offence of loitering or prowling at night is prescribed within section 177 of the Criminal Code which says:

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.

Whereas the Criminal Code is without a definition of "loiter" or "prowl" the answer may be found within the common law including the case of R. v. Walczak, 2008 ONCJ 70 which cites and sums up many earlier cases and wherein it was said:

[13]  It is generally accepted that this provision creates two offences, one of “loitering” and a second of “prowling”.  (See, e.g., R. v. Dillon, 1964 CanLII 678 (AB CA), [1964] 3 C.C.C. 205 (Alta. S.C. App. Div.) and R. v. Cloutier (1991), 1991 CanLII 11767 (QC CA), 66 C.C.C. (3d) 149 (Que. C.A.).) “Loitering”, as the word suggests, has been defined as “lingering indolently on one’s way, hanging idly about a place” (R. v. Willis (1987), 1987 CanLII 6851 (BC SC), 37 C.C.C. (3d) 184, at 186 (B.C. Co. Ct.) and as “wandering about apparently without precise destination” (R. v. Cloutier, supra, at 154).  Other than the fact that it occurs on private property, there is nothing reprehensible about a loiterer’s actions.  “Prowling”, on the other hand, has a pejorative connotation.  While “loitering” is sometimes, if too glibly, defined as “hanging around”, “prowling” is said to include the add-on feature of “[and] up to no good” (R. v. Priestap, infra, at para. 28). As the Quebec Court of Appeal explained in Cloutier, supra, at 155:

The verb [prowl] includes a notion of evil; it depreciates in his eyes the person who is involved in the action that it represents.  The prowler does not act without a purpose like the loiterer; his actions lead one to believe that he has something in mind and that this something is not commendable.  To see him acting so, one can properly say that he is eventually going to do some specific act, which will be such as to attract the reprobation of honest people, even if it is not otherwise specifically prohibited by the Criminal Code.

[14]  Recently, in R. v. Priestap (2006), 2006 CanLII 12288 (ON CA), 79 O.R. 561, at para. 24 , our Court of Appeal took pains to make clear that this passage did not mean that “prowling requires an additional element of intent to commit another specific act”.  Rather, as the Court noted, at para. 28, “the accused is prosecuted under s. 177 only for prowling, and not for the underlying purpose of such activity”.  Thus the Court concluded, at para. 34, that “[t]he Crown is not required to prove that the accused also had an intention to commit a specific evil act”.  Parliament’s purpose in enacting s. 177 was “to protect a resident by criminalizing the invasion of that person’s residential property at night in a surreptitious manner when the intruder has no lawful excuse to explain his presence”: para. 26.

Interestingly, per Walczak, and cases cited within, a person may be found guilty of trespass at night without need of proof that the person was engaging in any illicit intent.  While the words "loiter" and "prowl";, have negative connotations, and "em>prowl" is viewed as engaging in conduct that does involve something wrongful, in the prosecution of a trespass at night case, the prosecution is without need to prove that the accused person was intending on doing something wrongful.

Furthermore, the definition of "dwelling-house" and "night" is provided within section 2 of the Criminal Code wherein it is stated:

dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes

(a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and

(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence;

night means the period between nine o’clock in the afternoon and six o’clock in the forenoon of the following day;

Interestingly, the definition of "night", being specifically stated as 9:00PM until 6:00AM, seems somewhat surprising being that the protection of privacy and security, as the intent of the law, would suggest that "night" would be better defined as dusk until dawn, especially whereas the hours of darkness within Canada see dramatic seasonal swings whereas in many places during the winter darkness occurs by 5:00PM, or earlier, and daylight reappears at 7:00AM or later.  Similarly, in many places during the summer months, darkness falls well after 9:00PM and daylight occurs by 5:00AM or even earlier.  Regardless of the seasonal variations of darkness, the statutory definition remains stated as 9:00PM until 6:00PM despite that a dusk until dawn definition may appear more logical.

Summary Comment

The criminal offence of trespass at night involves a person loitering or prowling near a residential dwelling at nighttime.  Interestingly, "night" is defined as 9:00PM to 6:00AM despite the significant seasonal variations in the period of darkness within many places in Canada.  Additionally, the offence may be proven without need to prove that the accused person was intending on doing something wrongful.


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