The Criminal Code protects a rural resident in Haliburton by criminalizing the surreptitious invasion of that person’s residential property at night in a manner when the intruder has no lawful excuse to explain his or her presence. The Criminal Code provides that “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.” The following is a true story of prowling at night.
One winter’s night, a mother was home alone with her four young children, whom she had just tucked into bed. Shortly after 9:00 p.m., she decided to go to the deck to gather the family laundry (now frozen on the line). As she started to go outside, she noticed something hunched over at the base of the deck. At first she thought it was a deer until she saw the shape move in a crouched position into the front corner of the yard where the house met the fence. Growing nervous, she asked, “Who’s there?” No answer came. She asked again, more loudly, “Who’s there?” A male voice answered, saying that he was “looking for something”. The mother asked this time, “What are you looking for? What are you doing here? What do you mean you are looking for something?” The man stood up and quickly ran away.
Needless to say, the mother was frightened. She called 911. The police arrived shortly thereafter. The man was found and arrested. Several days later, a pair of frozen underwear was discovered on the front bushes of a property three doors away. The mother testified that this underwear was with her other laundry when the man was hiding in her backyard.
There was a debate in the courts over whether there is a need to prove that the intruder intended to commit a separate and distinct criminal act to prove a charge of prowling. The Ontario Court of Appeal rejected that argument. It stated: “Instinctively, an occupant or other observer seeing a trespasser moving stealthily or furtively near a home at night, absent other explanation, would conclude that the trespasser’s conduct evidences an intention to avoid detection – perhaps because the trespasser has committed, or is going to commit, or is contemplating committing, a reprehensible act. Whatever the prowler’s motive, however, it is the act of prowling itself that is an unwarranted invasion that causes anxiety to the observer, and not any reprehensible act that the trespasser may intend to commit, may have committed, or is contemplating committing.”