QUICK TAKEAWAY
Trespassing at Night: The crime of trespassing is mainly dealt with at the provincial level across Canada, though Section 177 of the Criminal Code addresses the act of (loitering or prowling) trespassing at night. Financial penalties are handed out by the provinces while the maximum penalty for violating the federal statute is two years in jail.
Table of Contents:
What is Trespassing in Canada?
The crime of trespassingBeing on someone’s property without permission is more of a provincial issue than a federal one, as most provinces have enacted their own laws dealing with the issue. Section 177 of the Criminal Code addresses the crime of trespassing at nightFrom 9 p.m. to 6 a.m., stating it is illegal to loiter or prowl at night near the home of another person.
The purpose of any trespass legislation is to give landowners greater control over their property. While trespassing is usually defined as the unlawful entry onto the private land of another, it also includes performing an unlawful activity on the land and refusing to leave when told to do so. Police can also arrest you after you have left the premises if they believe that you have just committed a trespass.
Most Provinces Have Trespassing Legislation
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.
What is Needed to Convict
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.
Penalties for Trespassing
The federal charge of trespassing by night is always treated as a summary convictionUsed for lesser offences, so those found guilty face a maximum sentence of two years minus a day in jail.
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.
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Maltais & Maltais, Avocats S.E.N.C.R.L
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Glossary of Legal Terms
Night
The period from 9 p.m. to 6 a.m. the next morning.
Summary conviction
Summary convictions are used for lesser offences with penalties, fines and short jail time. They reflect the majority of offences as defined in the Code.
Trespassing
Being on someone’s property without permission, or refusing to leave when asked. The Code makes it a crime to loiter on someone's property.
