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. The criminal offence of trespass at night involves a person loitering or prowling near a residential dwelling at nighttime. 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. Similarly, in many places during the summer months, darkness falls well after 9:00PM and daylight occurs by 5:00AM or even earlier. 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. Night means the period between nine o’clock in the afternoon and six o’clock in the forenoon of the following day (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 (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 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.įurthermore, the definition of " dwelling-house" and " night" is provided within section 2 of the Criminal Code wherein it is stated:ĭwelling-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 ![]() 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. 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. Thus the Court concluded, at para. 34, that “ he Crown is not required to prove that the accused also had an intention to commit a specific evil 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”. 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”. 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. ![]() 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. The verb includes a notion of evil it depreciates in his eyes the person who is involved in the action that it represents. While “ loitering” is sometimes, if too glibly, defined as “ hanging around”, “ prowling” is said to include the add-on feature of “ up to no good” ( R. v. Priestap, infra, at para. 28). As the Quebec Court of Appeal explained in Cloutier, supra, at 155: ![]() “ Prowling”, on the other hand, has a pejorative connotation. Other than the fact that it occurs on private property, there is nothing reprehensible about a loiterer’s actions. It is generally accepted that this provision creates two offences, one of “ loitering” and a second of “ prowling”.
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