Trespassing at Night

Under s. 177 of the Criminal Code, it is a federal offence to loiter or prowl at nightThe period from 9 p.m. to 6 a.m. the next day. on another person's property, near a dwelling-house (a home or other residence) on that property, without lawful excuse. This is narrower than what many people mean by 'trespassingBeing on property without permission or refusing to leave when required..' It targets nighttime prowling close to a home, not simply walking onto someone's land.

Across most of the country, provincial statutes address the crime of trespassing. In Ontario, the Trespass to Property Act allows occupiers of private premises to determine who is allowed on their premises, according to information from the government. You can be prosecuted under this law if you walk onto someone’s land without permission, if you engage in an activity that is forbidden on the premises or if you refuse to leave when asked to do so by the property owner.

In Alberta, government information in (Protecting property owners) about the Trespass Statutes (Protecting Law-abiding Property Owners) Act notes that while the legislation is intended to protect landowners from trespassers, property owners need to remember that they can be held criminally responsible for their actions and they should call law enforcement to deal with trespassers.

In British Columbia, the Trespass Act makes it illegal to enter an area that is enclosed land, enter a premise where you are not welcome or engage in activity on someone’s land that is prohibited.

You may be found guilty of trespass at night without the Crown needing to prove that you were engaging in criminal activity. Additionally, “night” is defined as being from 9 p.m. to 6 a.m. the next morning, despite the significant seasonal variations in the period of darkness within many places in Canada. If you are found on someone’s property during these hours, you could be charged.

The Crown must also prove that you did not have the permission to be on that property and that you have no title or interest in the land.

Under the Criminal Code, trespassing at night (s.177) is always a summary convictionUsed for lesser offences offence. The maximum penalty is two years less a day in jail and/or a fine of up to $5,000 (the default under s.787 of the Criminal Code, since s.177 sets no penalty of its own). The penalties described below come from provincial trespass laws, not the federal Criminal Code charge.

In Ontario, the court will determine the penalty for those convicted of trespassing “in favour of the person who suffered the damage.” The guilty party will also bear the costs of conducting the prosecution, the defendant’s costs plus any fine that may be imposed.

In Alberta, maximum fines up can reach $10,000 for a first offence and $25,000 for subsequent offences, as well as possible prison time of up to six months. In addition, corporations that help or direct trespassers can be fined up to $200,000.

In British Columbia, the charge of trespass is treated as a summary conviction, with a maximum penalty of six months imprisonment or a fine of up to $2,000.

Night means the period between 9 p.m. and 6 a.m. (Criminal Code, s. 2.)

Daytime or ordinary trespass is often dealt with under provincial trespass legislation, not this Criminal Code offence.