What is unlawfully in a dwelling-house?

If someone is in any sort of residence and uninvited, they could be charged with being unlawfully in a dwelling-house. It is assumed they have criminal intentions, such as theft, or perhaps to provoke an unwanted encounter with the home’s residents.

Section 349 of the Criminal Code states: “Every person who, without lawful excuse, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or of an offence punishable on summary conviction.”

To secure a conviction, the Crown must prove the accused had no justification for entering the premises or permission to enter, and that they intended to commit an indictable offence.

What if someone innocently enters a dwelling?

If someone is found in a dwelling but can show they had no intention to commit a criminal act, a case can be made that this charge is not applicable to them.

The second part of s. 349 of the Code states: “For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein.”

I had a client who had entered a construction work trailer parked on the street. He told me he did it just for fun, with no intention to steal or damage what was inside. But he was still charged with being unlawfully in a dwelling. After substantial negotiation with the Crown, where I pointed out that a work trailer didn’t fit the definition of a residence and that he had no criminal intent, I was able to get the charge dropped.

In exchange, my client agreed to perform 10 hours of community service, leaving him with a clean criminal record.

Door knocking leads to unlawful entry charge

A man in Newfoundland was charged with being unlawfully in a dwelling-house after he knocked on a neighbour’s door to complain about loud drumming going on inside. According to a judgment from the Provincial Court of Newfoundland and Labrador, the man banged on the door three times.

“He says that after the third bang the door opened,” court documents read. “He says that he did not open it but that he suspected that the locking mechanism was not working properly as the door opened following his banging and without him turning the doorknob … the defendant says that he did not enter.”

Standing on the porch, the man spoke to a young female resident of the home, telling her “something to the effect that they were not allowed to have the music going as if at Mile One Stadium and that they could get a $500 fine for making the noise. After saying his piece, the defendant says that he turned and left and returned to his home.”

Once home, the man phoned the mother of the children of the adjoining home to complain about the music. According to court documents, both the mother and daughter claimed the man was “loud and was swearing however there is no evidence that any threats were made by the defendant.”

Police were called and the man was charged with being unlawfully in a dwelling-house. The court dismissed that charge “on the basis that the evidence did not prove beyond a reasonable doubt that the defendant entered the home. The requisite intent to commit an indictable offence was likewise not proven,” according to the judgment.

Drug use a common factor in this crime

People charged with being unlawfully in a dwelling-house are often under the influence of drugs or alcohol.

In Guelph, Ont., a man was arrested after the homeowner saw him climb a property fence when she was out on a dog walk, a story states. Police were called, and when officers arrived at the scene, the man “appeared disoriented, later revealing to police he had ingested cocaine.”

In Thunder Bay, Ont., five suspects were facing numerous charges including being unlawfully in a dwelling-house after being found with “crack cocaine, a quantity of cash and paraphernalia consistent with drug trafficking,” according to a news report.

“Officers learned a number of people were in a home that should have been vacant, and entered the residence to clear it,” the story adds.

In Halifax, “a combination of drink, tiredness and hunger led to the arrest of a 20-year-old uninvited man” in a home, according to this story.

It states that at 3 a.m., “a homeowner woke up only to find an intoxicated man sleeping on the sofa. They say it appears he entered through an unlocked door, made a snack for himself and then fell asleep on the couch in the living room.”

The story adds that “a cup of tea and jam on a tortilla was made” by a man who later faced charges for possessing drugs and being unlawfully in a dwelling-house.

Feeding the animals no defence

In Kamloops, B.C., residents returned to their home to “find a stranger sitting on their couch with a cup of coffee,” according to a news story. “He had started a fire in the fireplace and prepared himself a meal. He said he had been driving by and the door was open, so he came in,” the Crown attorney told a provincial court.

“The accused appears to have done some laundry. He also fed the cats and put out some hay for the horses,” said the prosecutor, according to the report: “He used (the residents’) toothbrush and shaver, he had taken some meat out of the freezer to thaw and he had written in their diary.”

He also wrote in the diary, “I don’t feel alone here, I guess with 2 cats and 3 horses it’s kinda hard to be alone,” the story states. “Last night I had a fire in the house. It was so (peaceful). I slept like a little baby.”

Courts consider this a ‘serious offence’

While the charge of being unlawfully in a dwelling-house is less serious than being charged with break and enter, it is still a crime, as reinforced by a Supreme Court of Newfoundland and Labrador judgment.

The accused was sentenced to 35 days in jail for being unlawfully in a dwelling-house. The judgment noted: “Being unlawfully in a dwelling house is a serious offence and the sentence that I give [the accused] must deter him and others from re-offending. I received a victim impact statement … it is clear to me from reviewing it that [the victim] feels defiled at how [the accused] and his companions violated her privacy. This quotation from the victim impact statement underscores my observation: ‘Since the break-in happened I’ve got an insecurity that it will happen again. When I leave the house I have to check over and over again that the doors are locked. I’m afraid to leave the house at any given time.’”

Often accompanied by other charges

Many people charged with being unlawfully in a dwelling-house also face other charges related to the incident. According to this judgment from the Manitoba Court of Appeal, the appellant had been given a 7.5-year sentence by a lower court for the crime of being unlawfully in a dwelling-house. He was also handed a five-year sentence for robbery, a two-year sentence for uttering threats of death/bodily harm and a one-year sentence for fraudulent personation with intent to gain advantage, all to be served concurrently.

Court was told “the accused went to the victim’s home with an unnamed accomplice to enforce a drug debt of the victim, a crack cocaine addict. The accused and the accomplice gained entry to the victim’s home at 5:00 in the morning. The victim was asleep in bed. A female housemate, who is cognitively impaired and has mental health issues, opened the door. The victim was beaten, robbed and threatened with a steel object. The vulnerable housemate was also threatened.”

In denying the appeal, the court noted: “The Crown appropriately acknowledges that the seven and one-half-year sentence is significant for the offence of unlawfully being in a dwelling-house. However, the Crown argues that the sentence is entitled to deference, given the offences committed by the accused, his background and the entirety of the circumstances … while it may have been preferable, from an analytical perspective, if the trial judge had attributed the highest sentence to the robbery, we see no error in principle by the trial judge attributing the highest sentence to the offence of being unlawfully in a dwelling-house in the circumstances of this case.”

Experienced counsel makes the difference

Those charged with being in a dwelling-house should seek legal advice as soon as possible. If you are convicted it could mean jail time and a criminal record that will impact your reputation and ability to find other work. Don’t take that chance. Call me for a free consultation in either official language. I will be the only person you speak to at my firm and I will fight for the best outcome.

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