Being Unlawfully in a House

Being Unlawfully in a House

The offence of being unlawfully in a dwelling-house is outlined in section 349(1) of the Criminal Code.

A person commits the offence of being unlawfully in a dwelling-house when they enter or are already inside a home without a lawful excuse and with the intention of committing another crime.

A person enters a home where any part of their body or an instrument that they are using is within the home.

Examples

Person A knocks on person B’s door, and once person B opens the door person A enters person B’s home and violently assaults person B.

Person C sees that person D’s mobile home is empty and that the front door is wide open, so person C enters the home to steal person D’s valuables.

Person E sticks their hand into person F’s open window hoping to reach and take a diamond necklace left on the nightstand next to the window.

Cases

R. v. Bolan, 2022 ONSC 2581

In R. v. Bolan, the three accused were each convicted of one count of being unlawfully in a dwelling-house when they entered the victim’s apartment through the unlocked front door armed with various weapons and severely beat him.

R. v. Wilson, 2020 ONCJ 176

In R. v. Wilson, the accused was charged with one count of being unlawfully in a dwelling-home when he accompanied the victim home after a night out at a local bar and entered the victim’s home to hit the victim on the head when the victim denied the accused entry to his home.

Offence Specific Defence(s)

Lawful Excuse

Where the person is in the home for a lawful excuse, they will not have completed the offence of being unlawfully in a dwelling-house. A lawful excuse could include owning or renting the home or having the owner’s permission to be there.

Not a Dwelling-House

Where the person is unlawfully in a place that is not a home or residence, they have not completed the offence of being unlawfully in a dwelling-home.

No Intention

Where the person does not intend to commit another crime inside the home they are in without a lawful excuse, they may not have completed the offence of being unlawfully in a dwelling-home.

Not Inside

Where the person has not yet entered the home or is standing outside the home, despite intending to enter the home or to commit a crime in the area, they have not completed the offence of being unlawfully in a dwelling-home.

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