Definition of Dwelling House: Difference between revisions

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==General Principles==
==General Principles==
<!-- -->
{{seealso|Break and Enter (Offence)}}
{{seealso|Break and Enter (Offence)}}
"Dwelling house" is defined in section 2:
"Dwelling house" is defined in section 2:
{{quotation|
{{quotation2|
s. 2<br>
2 In this Act,<br>
...<br>
{{ellipsis}}
“dwelling-house” means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes
'''"dwelling-house"''' means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes
:(a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and
:(a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and
:(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence;
:(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence;
 
{{ellipsis}}
...<br>
{{History-S2}}
R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371.
|{{CCCSec2|2}}
|[http://canlii.ca/t/7vf2#sec2 CCC]
|{{NoteUp|2}}
}}
}}


Factors to consider include:<ref>''R v Sappier'', [http://canlii.ca/t/1m1t3 2005 NBPC 37] (CanLII){{perNBPC|Ferguson J}}</ref>
; Factors
Factors to consider include:<ref>
{{CanLIIRP|Sappier|1m1t3|2005 NBPC 37 (CanLII)|34 CR (6th) 313}}{{perNBPC|Ferguson J}}</ref>
* the intention of the builder;
* the intention of the builder;
* the traditional use;
* the traditional use;
Line 25: Line 27:
* the character of the building.
* the character of the building.


Detached building on private property does not usually amount to dwelling. <ref>''R v NM'',  [http://canlii.ca/t/1sg9k 2007 CanLII 31570] (ON S.C.){{perONSC|Hill J}}</ref>  
; Detached Building
Detached building on private property does not usually amount to dwelling. <ref>
{{CanLIIRP|NM|1sg9k|2007 CanLII 31570 (ON SC)|223 CCC (3d) 417}}{{perONSC|Hill J}}</ref>
 
; Empty, Abandoned or Incomplete Building
An incomplete building does not constitute a dwelling.<ref>
{{supra1|Sappier}}</ref>
However, an abandoned building however is one.<ref>
{{CanLIIR-N|DeWolfe| (1988), 82 N.S.R.(2d) 175 (CA)}}</ref>


An incomplete building does not constitute a dwelling.<ref>R v Sappier</ref> However, an abandoned building however is one.<ref>R v DeWolfe (1988), 82 N.S.R.(2d) 175 (CA){{NOCANLII}}</ref>
A house which is not occupied can still retain its character as a dwelling-house.<ref>
{{supra1|De Wolfe}} - a house that was emptied a month prior was a dwelling</ref>


A driveway is not a dwelling house; it is a place where people drive and park their vehicles.<ref>
Certain types places will lose their dwelling-house status from non-use. A house may be abandoned for a period of time, dilapidated, boarded-up, and "not intending to be live[d] in ...again" rendering it a non-dwelling.<ref>
''R v Evans'', [http://canlii.ca/t/1frf4 1996 CanLII 248] (SCC), [1996] 1 SCR 8{{Plurality}} at para 32
{{CanLIIRP|Paquet|htwb2|1978 CanLII 2510 (ON CA)| [1978] OJ No 980 (O.C.A.)}}{{perONCA-H|Martin JA}} - abandoned three years, falling apart<br>
{{CanLIIRx|Tapley|fwx33|2013 NBPC 8 (CanLII)}}{{perNBPC|Brien J}} - 3 months abandoned
</ref>
</ref>


A motel room,<ref> ''R v Henderson'', [1975] 1 WWR 360 (BCPC){{NOCANLII}}</ref> camp,<ref>
A "dwelling-house" for the purpose of a conviction under s. 348 for a break and enter will ''not'' include a building under construction that has not been occupied as a residence.<ref>
''R v Nowlan'',  [http://canlii.ca/t/23c2s 2009 NBQB 117] (CanLII){{perNBQB|Ferguson J}}</ref> can be a dwelling.
{{CanLIIRP|Sappier|1m1t3|2005 NBPC 37 (CanLII)|34 CR (6th) 313}}{{perNBPC|Ferguson J}}
</ref>


A house which is not occupied can still retain its character as a dwelling-house.<ref>
; Garage or Driveway
De{{supra1|Wolfe}} - a house that was emptied a month prior was a dwelling</ref>
A driveway is not a dwelling house; it is a place where people drive and park their vehicles.<ref>
{{CanLIIRP|Evans|1frf4|1996 CanLII 248 (SCC)|[1996] 1 SCR 8}}{{Plurality}}{{atL|1frf4|32}}
</ref>


A garage or parkade under the residential building is also a dwelling-house.<ref>
A garage or parkade under the residential building is also a dwelling-house.<ref>
''R v Chomik'', [http://canlii.ca/t/flb4s 2011 ABPC 152] (CanLII){{perABPC|Kerby J}}
{{CanLIIRP|Chomik|flb4s|2011 ABPC 152 (CanLII)|234 CRR (2d) 109}}{{perABPC|Kerby J}}
</ref>
</ref>


Certain types places will lose their dwelling-house status from non-use. A house may be abandoned for a period of time, dilapidated, boarded-up, and "not intending to be live[d] in ...again" rendering it a non-dwelling.<ref>
; Hotel or Motel
R v Paquet [1978] O.J. No 980 (O.C.A.), [http://canlii.ca/t/htwb2 1978 CanLII 2510] (ON CA){{perONCA|Martin JA}} - abandoned three years, falling apart<br>
A motel room,<ref>
''R v Tapley'', [http://canlii.ca/t/fwx33 2013 NBPC 8] (CanLII){{perNBPC|Brien J}} - 3 months abandoned
{{CanLIIR-N|Henderson|, [1975] 1 WWR 360 (BCPC)}}</ref> camp,<ref>
{{CanLIIRP|Nowlan|23c2s|2009 NBQB 117 (CanLII)|894 APR 39}}{{perNBQB|Ferguson J}}</ref> can be a dwelling.
 
; Moveable Shelters
Living in a truck does not render the vehicle a dwelling house.<ref>
{{CanLIIRx|MacDonald|jb95g|2020 NSCA 69 (CanLII)}}{{perNSCA|Derrick JA}}{{AtL|jb95g|99}}
</ref>
</ref>


A "dwelling-house" for the purpose of a conviction under s. 348 for a break and enter will ''not'' include a building under construction that has not been occupied as a residence.<ref>
; Curtilage
''R v Sappier'', [http://canlii.ca/t/1m1t3 2005 NBPC 37] (CanLII){{perNBPC|Ferguson J}}
"Curtilage" in US law is meant to "include all buildings in close proximity to a dwelling, which are continually used for carrying on domestic employment; or such place as is necessary and convenient to a dwelling and is habitually used for family purposes."<ref>
''United States v Potts'', 297 F.2d 68 [6th Cir. 1961]</ref>
 
The meaning of curtilage has been defined in domestic courts as "the land or yard adjoining a house, usually within an enclosure."<ref>
{{CanLIIRP|Le (TD)|frj5d|2011 MBCA 83 (CanLII)|275 CCC (3d) 427}}{{perMBCA|Scott CJ}}{{atL|frj5d|83}}<br>
{{CanLIIRP|Beune|1knr3|2005 BCPC 175 (CanLII)|BCJ No 1082}}{{perBCPC|Dhillon J}}{{atL|1knr3|31}}<br>
</ref>
</ref>


'''Curtilage'''<br>
; Relationship with CDSA Definition
"Curtilage" in US law is meant to "include all buildings in close proximity to a dwelling, which are continually used for carrying on domestic employment; or such place as is necessary and convenient to a dwelling and is habitually used for family purposes".<ref>
The definition of "dwelling-house" in the Code has no interdependence with the definition in the CDSA.<Ref>
United States v Potts, 297 F.2d 68 [6th Cir. 1961]</ref>
{{supra1|MacDonald}}{{AtL|jb95g|98}}
 
The meaning of curtilage has been defined in domestic courts as "the land or yard adjoining a house, usually within an enclosure".<ref>
R v Le (TD), [http://canlii.ca/t/frj5d 2011 MBCA 83] (CanLII){{perMBCA|Scott CJ}} at para 83<br>
''R v Beune'', [http://canlii.ca/t/1knr3 2005 BCPC 175] (CanLII){{perBCPC|Dhillon J}} at para 31<br>
</ref>
</ref>


Latest revision as of 14:24, 14 July 2024

General Principles

See also: Break and Enter (Offence)

"Dwelling house" is defined in section 2:

2 In this Act,
...
 "dwelling-house" means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes

(a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and
(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence;

...
 R.S., 1985, c. C-46, s. 2; R.S., 1985, c. 11 (1st Supp.), s. 2, c. 27 (1st Supp.), ss. 2, 203, c. 31 (1st Supp.), s. 61, c. 1 (2nd Supp.), s. 213, c. 27 (2nd Supp.), s. 10, c. 35 (2nd Supp.), s. 34, c. 32 (4th Supp.), s. 55, c. 40 (4th Supp.), s. 2; 1990, c. 17, s. 7; 1991, c. 1, s. 28, c. 40, s. 1, c. 43, ss. 1, 9; 1992, c. 20, s. 216, c. 51, s. 32; 1993, c. 28, s. 78, c. 34, s. 59; 1994, c. 44, s. 2; 1995, c. 29, ss. 39, 40, c. 39, s. 138; 1997, c. 23, s. 1; 1998, c. 30, s. 14; 1999, c. 3, s. 25, c. 5, s. 1, c. 25, s. 1(Preamble), c. 28, s. 155; 2000, c. 12, s. 91, c. 25, s. 1(F); 2001, c. 32, s. 1, c. 41, ss. 2, 131; 2002, c. 7, s. 137, c. 22, s. 324; 2003, c. 21, s. 1; 2004, c. 3, s. 1; 2005, c. 10, s. 34, c. 38, s. 58, c. 40, ss. 1, 7; 2006, c. 14, s. 1; 2007, c. 13, s. 1; 2012, c.1, s. 160, c. 19, s. 371; 2013, c. 13, s. 2; 2014, c. 17, s. 1, c. 23, s. 2, c. 25, s. 2; 2015, c. 3, s. 44, c. 13, s. 3, c. 20, s. 15; 2018, c. 21, s. 12; 2019, c. 13, s. 140; 2019, c. 25, s. 1; 2022, c. 17, s. 1.

– CCC (CanLII), (DOJ)

Note up: 2

Factors

Factors to consider include:[1]

  • the intention of the builder;
  • the traditional use;
  • the type of temporary use;
  • the seasonal use;
  • the actual use; and
  • the character of the building.
Detached Building

Detached building on private property does not usually amount to dwelling. [2]

Empty, Abandoned or Incomplete Building

An incomplete building does not constitute a dwelling.[3] However, an abandoned building however is one.[4]

A house which is not occupied can still retain its character as a dwelling-house.[5]

Certain types places will lose their dwelling-house status from non-use. A house may be abandoned for a period of time, dilapidated, boarded-up, and "not intending to be live[d] in ...again" rendering it a non-dwelling.[6]

A "dwelling-house" for the purpose of a conviction under s. 348 for a break and enter will not include a building under construction that has not been occupied as a residence.[7]

Garage or Driveway

A driveway is not a dwelling house; it is a place where people drive and park their vehicles.[8]

A garage or parkade under the residential building is also a dwelling-house.[9]

Hotel or Motel

A motel room,[10] camp,[11] can be a dwelling.

Moveable Shelters

Living in a truck does not render the vehicle a dwelling house.[12]

Curtilage

"Curtilage" in US law is meant to "include all buildings in close proximity to a dwelling, which are continually used for carrying on domestic employment; or such place as is necessary and convenient to a dwelling and is habitually used for family purposes."[13]

The meaning of curtilage has been defined in domestic courts as "the land or yard adjoining a house, usually within an enclosure."[14]

Relationship with CDSA Definition

The definition of "dwelling-house" in the Code has no interdependence with the definition in the CDSA.[15]

  1. ↑ R v Sappier, 2005 NBPC 37 (CanLII), 34 CR (6th) 313, per Ferguson J
  2. ↑ R v NM, 2007 CanLII 31570 (ON SC), 223 CCC (3d) 417, per Hill J
  3. ↑ Sappier, supra
  4. ↑ R v DeWolfe (1988), 82 N.S.R.(2d) 175 (CA)(*no CanLII links)
  5. ↑ De Wolfe, supra - a house that was emptied a month prior was a dwelling
  6. ↑ R v Paquet, 1978 CanLII 2510 (ON CA), [1978] OJ No 980 (O.C.A.), per Martin JA - abandoned three years, falling apart
    R v Tapley, 2013 NBPC 8 (CanLII), per Brien J - 3 months abandoned
  7. ↑ R v Sappier, 2005 NBPC 37 (CanLII), 34 CR (6th) 313, per Ferguson J
  8. ↑ R v Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8, at para 32
  9. ↑ R v Chomik, 2011 ABPC 152 (CanLII), 234 CRR (2d) 109, per Kerby J
  10. ↑ R v Henderson, [1975] 1 WWR 360 (BCPC)(*no CanLII links)
  11. ↑ R v Nowlan, 2009 NBQB 117 (CanLII), 894 APR 39, per Ferguson J
  12. ↑ R v MacDonald, 2020 NSCA 69 (CanLII), per Derrick JA, at para 99
  13. ↑ United States v Potts, 297 F.2d 68 [6th Cir. 1961]
  14. ↑ R v Le (TD), 2011 MBCA 83 (CanLII), 275 CCC (3d) 427, per Scott CJ, at para 83
    R v Beune, 2005 BCPC 175 (CanLII), BCJ No 1082, per Dhillon J, at para 31
  15. ↑ MacDonald, supra, at para 98
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