Unlawfully in a Dwelling (s. 349) Laws in Canada

What is an Unlawfully in a Dwelling charge?

Unlawfully in a Dwelling is covered under s. 349(1) of the Criminal Code Part IX of the Criminal Code relating to “Offences Against Rights of Property.”

An unlawfully in a dwelling charge occurs when someone lacking a lawful reason enters or is in a dwelling for the purpose of committing another indictable offence. Unless there is evidence that the person has entered the dwelling without intent to commit an indictable offence, it’s presumed otherwise.

Unlawfully in a dwelling is a hybrid offence with a Crown election. If an indictment is used for prosecution, there is a Defence election of Court under s. 536(2) of the Criminal Code to trial by the provincial court, superior court judge-alone, or superior court judge-and-jury. Summary conviction is also available.

Examples

Some examples of an unlawfully in a dwelling charge may include the following:

• The accused is intoxicated and enters an apartment through an unlocked window
• The accused climbs a fence and enters through an unlocked backdoor of a home carrying a large empty bag.
• The accused finds a spare key to a home under the doormat and lets themselves in.
• The accused enters a home through an open garage wearing a ski mask and carrying a tactical knife.

Defences

The defences available to an unlawfully in a dwelling charge will depend on the specific facts of your case.

However, some potential defences to an escape from lawful custody charge may include the following:

• The accused was wrongly identified as the person who was unlawfully in a dwelling
• The accused was lawfully in the dwelling
• The accused didn’t actually enter the dwelling
• The accused didn’t enter the dwelling for the purpose of committing another indictable offence

Punishments

An unlawfully in a dwelling charge is a hybrid offence, with a maximum punishment of:

• Indictable: 10 years imprisonment
• Summary: Two years less a day in jail and/or a $5,000 fine

Punishments for unlawfully in a dwelling will be determined by whether the Crown elects to pursue the charge as an indictable offence or summarily. This offence carries no mandatory minimum penalties. If this charge is prosecuted by indictment, the maximum penalty is ten years in prison. If it’s prosecuted summarily, the maximum punishment is no more than two years less a day of incarceration and/or a $5,000 fine.

As with other charges, an unlawfully in a dwelling conviction could have additional consequences outside the court system, including problems with employment or immigration.

Overview of the Offence 

Section of the Criminal Code s. 349(1):

The Guilty Act (Actus Reus)

For actus reus, there must be a voluntary commission of an unlawful act. In other words, was there criminal intent on the part of the accused?

The actus reus for an unlawfully in a dwelling under charge under s. 349(1) is established by proof, beyond a reasonable doubt, of the following facts:

• The accused, at a specified date and time, in the proper jurisdiction (to include region and province), entered upon a dwelling and
• The accused had no “lawful excuse” for entering the premises or permission to enter

OR

• The accused committed the prohibited act intending to commit an indictable offence (presumed under s. 349(2))

R v Payne held that if there is reasonable doubt that the accused had permission from the dwelling’s owner or occupier to enter, the charge laid under section 349(1) of the Criminal Code must be dismissed.

R v. Bernard held that if there is proof the accused went into a dwelling-house without lawful excuse, the presumption created under s. 349(2) that they intended to commit an indictable offence establishes proof of this intent. However, the accused need only to raise a reasonable doubt that he didn’t have the intention to commit an indictable offence to rebut the presumption. Moreover, when there is evidence to prove the contrary, the prosecution must prove the existence of the necessary intent beyond a reasonable doubt.

The Guilty Mind (Mens Rea)

Courts presume that criminal offences require a subjective mens rea or intent, knowledge, recklessness, or willful blindness— unless Parliament clearly indicates otherwise. In other words, was there criminal action on the part of the accused?

The mens rea for an unlawfully in a dwelling charge under s. 349(1) include proving, beyond a reasonable doubt, that:

• The accused had a general intent to enter or be present in the dwelling-house without lawful excuse,
• The accused had the specific intent to commit an indictable offence.

R v Ellis: The first element of the offence of unlawfully being in a dwelling-house that the Crown must prove is that the defendant actually entered the [complainant’s] dwelling.

R v E(S): Does the commission of the offence described in s. 349(1) include the commission of the offense of committing mischief by interfering with the lawful use, enjoyment, and operation of property by a person? Without a lawful excuse as described in s. 349. the entry itself constitutes an interference with a person’s use of property. If the entry is intentional, it follows that the interference is intentional.

Under 430(1), everyone commits mischief who intentionally:

• obstructs, interrupts, or interferes with the lawful use, enjoyment, or operation of property; or
• obstructs, interrupts, or interferes with any person in the lawful use, enjoyment, or operation of property.

Defences

How to Beat an Unlawfully in a Dwelling Charge

No two unlawfully in a dwelling cases are the same. The defences that apply and could be successful in your case will depend on the specific facts involved in your situation. A defence that works for one case may not work for a different case. However, here are some commonly used defences unlawfully in a dwelling charge:

Factual Innocence

Factual innocence is often a successful defence against an unlawfully in a dwelling charge. With this defence, you maintain that you are indeed factually innocent. This defence requires that you establish the facts through evidence showing that you did not unlawfully enter a building with the intent to commit another crime.

For instance, you can do this by proving the following:

• You weren’t unlawfully in the dwelling—rather, you were invited and lawfully there
• You did not enter the dwelling
• You weren’t in the dwelling with the purpose of committing another indictable offence

Identity

The Crown must charge the right people with a crime. By using an identity defence, you are arguing that the accused was wrongly identified as the person who was unlawfully in a dwelling. Suppose you are being falsely accused of entering the dwelling, and the crime was committed by someone else. In that case, you could raise the identity defence. With this defence, you will need to prove that they have charged the wrong person and that you aren’t the one who entered the dwelling unlawfully.

Not a Dwelling

You may be able to rely on the defence that the premises or building you entered should not be classified as a dwelling. For example, you entered a place of business, a shed, or a trailer. If you did not enter a dwelling, the unlawfully in a dwelling charge should not apply to your circumstances. For this charge to apply, the place you enter must fit the definition of a residence—such as a dorm, house, apartment, or townhome.

Punishments

An unlawfully in a dwelling charge is a hybrid offence. This means that the prosecutor can choose to proceed with the offence as either a summary conviction offence or an indictable offence. Their decisions are usually based on various factors, such as how serious the accused actions were and what, if any, harm they caused.

The Criminal Code establishes a possible maximum term of imprisonment of no more than ten years for those convicted of an indictable unlawfully in a dwelling charge. There are no sentencing minimums. Two years less a day in jail and/or a $5,000 fine is the maximum punishment under a summary unlawfully in a dwelling offence.

Frequently Asked Questions

What are the essential elements of unlawfully in a dwelling-house?

Several essential elements of the law must be met to be charged and convicted of unlawfully in a dwelling-house. First, the accused must enter the premises. If they open a door but don’t enter, the charge won’t be applicable. The premises entered upon must be a dwelling house—it cannot be a business or another type of building; it must be a residential building. Next, the accused must lack a lawful excuse for being in the dwelling. If they were invited in or otherwise allowed to be there, the charge won’t fit. Finally, the accused must have entered the dwelling with the intention of committing another indictable offence.

Can you go to jail for unlawfully in a dwelling?

Yes, you can go to jail if convicted of an unlawfully in a dwelling charge. How long you could be in jail depends on several factors. How the prosecutor decides to pursue the case (whether as a summary or an indictable offence) will determine if you could face up to either a day less than two years in jail (in addition to a $5,000 fine) for a summary offence or up to ten years in jail if prosecuted as an indictable offence.

Is unlawfully in a dwelling a serious offence?

The Crown considers unlawfully in a dwelling as a serious offence. While an unlawfully in a dwelling-house charge is less serious than being charged with break and enter or other similar charges, it is still a crime. Victims of these crimes often feel an extreme violation of their privacy and even live with the daily fear of someone coming into their home again. Due to these factors, the courts treat an unlawfully in a dwelling as a serious offence.

Published Decisions

R v Wiens, 2013 ABPC 15 (CanLII)

The accused entered a rural home while the owner quickly ran into town for a newspaper. The door was left ajar, but the storm door was shut. The homeowner confirmed nothing was missing, and no other indictable offence appeared to have been committed.

However, the accused had a lengthy criminal history, which included extremely recent breaking and entering convictions. Taking into account the aggravating factors, the sentencing principles, and the case law, the court found it appropriate to impose a sentence of sixteen months of incarceration.

You can read the full decision here.

R v Atkinson, 2012 ONCA 380 (CanLII)

The accused was convicted of breaking and entering at an apartment, subsequently stealing a television, and of two earlier unlawful entries with intent to commit an indictable offence. The accused filed an appeal. At issue as to the unlawful entry offences, the accused claimed that the trial judge erred in applying the statutory presumption of intent in s. 349(2) of the Criminal Code. However, the appellate court found nothing about either of those incidents that would cause the court to doubt the intent of the accused’s entry. There is no other evidence to suggest the accused’s intent was otherwise. Accordingly, the court was satisfied beyond a reasonable doubt that the charge for unlawfully in a dwelling is correct.

You can read the full decision here.

R v Ellis, 2012 CanLII 62646

The accused was charged with unlawfully entering a dwelling house but maintained he had knocked on the neighbour’s door to complain about the playing of drums. The accused said that the door became ajar without his doing anything other than simply knocking. However, the resident believed that the accused did indeed enter the residence.

The Crown held that the court could not prove beyond a reasonable doubt that the accused had entered the neighbour’s house. Even if the Crown had so proven, sufficient evidence was called to disprove the statutory presumption of intent in s.349(2) of the Criminal Code. The Court also rejected the Crown’s argument that mischief (s.430 of the Criminal Code) was an included offence.

You can read the full decision here.