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Frequently Asked Questions

An individual could face charges for entering someone’s home without prior authorization or permission. Generally, this applies to any kind of residence. In this offence, it is presumed that their goals are criminal, involving theft or even planning to have an unwelcome interaction with the occupants of the house. The Crown must demonstrate that defendant had no reasonable justification or authorization to access the property.

What is Unlawfully in a Dwelling?

The offence of being in someone else’s house without their consent and without intending to commit another crime is known as “Unlawfully in a Dwelling.” This involves entering someone else’s home without permission, which might include going inside the house without breaking in or staying there unnoticed by the owner.

According to the Criminal Code of Canada, being found in an unauthorized residence is an indictable offence that carries a maximum ten-year jail sentence or a maximum six-month sentence in the event of a summary conviction. The sentence is dependent on the case’s specific circumstances, and therefore it is important to consult a lawyer if you are charged with this offence.

What is the Difference Between Unlawfully being in a Dwelling and Break-and-Enter

Although both break-and-enter (B&E) and unlawfully being in a dwelling entail entering someone else’s property without authorization, there are significant distinctions. B&E increases the seriousness of the crime by requiring intent to commit an indictable offence. On the other hand, being in a residence without authorization, regardless of the reason, is referred to as being unlawfully in a dwelling.

For clarification, consider this example: an individual can face B&E charges if they break into a home with the intent to steal something. Conversely, if someone enters a house without authorization and has no intention of committing any further crimes, they may face charges of being unlawfully in a dwelling.

How Criminal Charges can be Resolved in Canada

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What kind of penalties might an individual face if convicted of Unlawfully in a Dwelling?

There are several penalties for unlawfully in a dwelling  in Ontario. This statute provides the legal foundation for dealing with unlawful entry onto private property. One type of penalty that can be imposed is fines, which vary based on the offence’s circumstances and seriousness.

The Trespass to Property Act states that trespassers may be subject to fines of up to $10,000. Repeat offenders and those who inflict damage during the unlawful entry may face increased fines and more serious legal repercussions. Furthermore, property owners have the authority to evict trespassers from their grounds and may pursue additional legal action if the trespass causes damages or other legal problems.

Consequences of a Criminal Record

Being Unlawfully in Dwelling-House

Section 349 (1) of the Code states that, “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.”

Subsection 2 of states that, “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.”

This means that barring any proof to the contrary, it will be presumed that the person who unlawfully is in a person’s dwelling was there to commit an offence.

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Recent Cases

Guillaume v. Chief Animal Welfare Inspector, 2024 ONSC 2976

G.’s plea for judicial review was turned down by the Superior Court of Justice’s Ontario Division on June 3, 2024. V. G. made an attempt to overturn the Animal Care Review Board’s decision, which upheld the removal of 41 cats from her apartment. The Board concluded that the inspectors entered her apartment without a warrant since the cats were in a serious state of distress and that they acted appropriately according to the Provincial Animal Welfare Services Act, 2019.

G. claimed that her Charter rights were infringed by the lack of a search warrant, but the Court pointed to her failure to appear at the hearing as a negative factor. The Court upheld the Board’s judgment, finding it to be justifiable and fair in view of the information available and the laws permitting entrance without a warrant in emergency cases.

R. v. J. B., 2016 CanLII 12565 (NL PC)

Here, J. B. was sentenced to fifteen months of imprisonment followed by three years of probation for multiple offences. These offences included assault, uttering threats, unlawful entry into a dwelling-house, and breaches of court orders, specifically undertakings and probation.

The issue began when J. B. relationship with A. H. ended on June 11, 2015, and she asked him to move out of her residence. The next day, J. B. unlawfully entered Hann’s residence early in the morning and assaulted her when she tried to call the police. He was already under an undertaking and probation order at the time. J. B. was arrested and later released with a condition prohibiting contact with A. H.

On December 4, 2015, J. B. breached this condition by constantly calling A. H., leaving threats and pestering her. His actions were described as obsessive behaviour indicative of an ex-boyfriend who cannot accept the end of an intimate relationship. J. B.’s extensive criminal record demonstated that he has not made sufficient efforts to change his behaviour, has not reformed, nor has he shown remorse.  He also constantlydisobeys court orders, which the Court held to be a significant aggravating factor.

The Court emphasized the need for a sentence that would serve the principles of deterrence, denunciation, and public protection. Given J. B.’s history and the serious nature of his offences, the court determined that a period of fifteen months of incarceration followed by three years of probation was appropriate. The Court stressed the importance of addressing intimate partner violence and ensuring that offenders who pose a danger to society do not repeat the same actions, or are deterred from doing the crime in the first place.

Land v. Dryden Police Services Board, 2023 ONCA 207

The Ontario Court of Appeal addressed the subject of police officers and child protection workers accessing a building without a warrant in this instance. After getting a report that S. H. appeared intoxicated after picking up her daughter, police attempted to enter her home without a warrant, which is the core of the issue here. S. H. and her partner, J. L., an Indigenous Family Services child protection worker, were opposed the cops entering the house.

Land and Henry sued, claiming that the entry was unlawful and he sought damages. The trial judge first dismissed their objections, citing the Child and Family Services Act (CFSA) as support for the entry without a warrant since the child protection worker had reason to believe the kid could need protection. The Ontario Court of Appeal found that the trial judge failed to properly assess whether there were reasonable and probable grounds to infer there was a significant risk to the child’s health or safety, as required under the CFSA.

The Court emphasized that the particular powers under the CFSA must be strictly adhered to, and that the protection worker’s subjective belief alone was insufficient in the absence of clear evidence of a significant risk. Given this, the Court of Appeal overturned the summary judgment and allowed the charges of negligence, assault, battery, trespassing, false detention, invasion of privacy, and Charter violations to go to trial.

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About the Author

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Jordan Donich

Jordan Donich has been a Lawyer for over 10 years and is a trusted legal analyst by Canadian Media. He is as a leader in Canada’s tech sector for lawyers and developer of Law Newbie. Jordan is a Black Belt with the Japan Karate Association and trained in Krav Maga. He won a Gold Medal at 2004 Canadian National Championships and was published in the National Newspaper Awards.

Jordan has been featured in Forbes and is a member of DMZ Angels in Toronto.