Canadian Criminal Law/Offences/Trespassing at Night
|Trespassing at Night|
|s. 177 of the Crim. Code|
|Election / Plea|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||6 months jail or $5,000 fine|
|Offence Elements |
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
In addition to the essential elements of time, jurisdiction and identity, the crown should prove:
- the accused loitered or prowled
- it was night at the time
- the accused was on private property at the time
- a private dwelling-house is situated on that property
- there was no lawful excuse for the conduct
"loitering" is purposeless wandering about the area. It includes standing idly around, hanging around, lingering, sauntering, dawdling.
"prowling" is conduct with a specific unlawful goal.
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.
The burden is on the defence to prove a lawful excuse.
See also: R. v. Butt, 2010 NLTD 58
R. v. Willis, (1987), 37 C.C.C. (3d) 184, at 186 (B.C. Co. Ct.)
R. c. Cloutier, 1991 CanLII 2831 (QC CA) at para. 154
R. v. Lozowchuk 1984 CarswellSask 268
R. v. Dillon,  3 C.C.C. 205 (Alta. S.C. App. Div.)
R. c. Cloutier, 1991 CanLII 2831 (QC CA)
R. v. Walczak, 2008 ONCJ 70
R. v. Priestap, 2006 CanLII 12288 (ON CA)
- R. v. Andsten 1960 128 C.C.C. 311 (BCCA)
- R. v. Johnson, 1985 CarswellBC 680 (BCPC)