Definition of Dwelling House: Difference between revisions
| Line 17: | Line 17: | ||
}} | }} | ||
; Factors | |||
Factors to consider include:<ref> | Factors to consider include:<ref> | ||
''R v Sappier'', [http://canlii.ca/t/1m1t3 2005 NBPC 37] (CanLII){{perNBPC|Ferguson J}}</ref> | ''R v Sappier'', [http://canlii.ca/t/1m1t3 2005 NBPC 37] (CanLII){{perNBPC|Ferguson J}}</ref> | ||
| Line 26: | Line 27: | ||
* the character of the building. | * the character of the building. | ||
; Detached Buiding | |||
Detached building on private property does not usually amount to dwelling. <ref> | 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> | ''R v NM'', [http://canlii.ca/t/1sg9k 2007 CanLII 31570] (ON S.C.){{perONSC|Hill J}}</ref> | ||
; Empty, Abandoned or Incomplete Building | |||
An incomplete building does not constitute a dwelling.<ref> | An incomplete building does not constitute a dwelling.<ref> | ||
{{supra1|Sappier}}</ref> | {{supra1|Sappier}}</ref> | ||
However, an abandoned building however is one.<ref> | However, an abandoned building however is one.<ref> | ||
''R v DeWolfe'' (1988), 82 N.S.R.(2d) 175 (CA){{NOCANLII}}</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> | 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> | {{supra1|De Wolfe}} - a house that was emptied a month prior was a dwelling</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> | 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> | ||
| Line 57: | Line 48: | ||
''R v Sappier'', [http://canlii.ca/t/1m1t3 2005 NBPC 37] (CanLII){{perNBPC|Ferguson J}} | ''R v Sappier'', [http://canlii.ca/t/1m1t3 2005 NBPC 37] (CanLII){{perNBPC|Ferguson J}} | ||
</ref> | </ref> | ||
; Garage or Driveway | |||
A driveway is not a dwelling house; it is a place where people drive and park their vehicles.<ref> | |||
''R v Evans'', [http://canlii.ca/t/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> | |||
''R v Chomik'', [http://canlii.ca/t/flb4s 2011 ABPC 152] (CanLII){{perABPC|Kerby J}} | |||
</ref> | |||
; Hotel or Motel | |||
A motel room,<ref> | |||
''R v Henderson'', [1975] 1 WWR 360 (BCPC){{NOCANLII}}</ref> camp,<ref> | |||
''R v Nowlan'', [http://canlii.ca/t/23c2s 2009 NBQB 117] (CanLII){{perNBQB|Ferguson J}}</ref> can be a dwelling. | |||
; Curtilage | ; Curtilage | ||
| Line 65: | Line 70: | ||
''R v Le (TD)'', [http://canlii.ca/t/frj5d 2011 MBCA 83] (CanLII){{perMBCA|Scott CJ}}{{atL|frj5d|83}}<br> | ''R v Le (TD)'', [http://canlii.ca/t/frj5d 2011 MBCA 83] (CanLII){{perMBCA|Scott CJ}}{{atL|frj5d|83}}<br> | ||
''R v Beune'', [http://canlii.ca/t/1knr3 2005 BCPC 175] (CanLII){{perBCPC|Dhillon J}}{{atL|1knr3|31}}<br> | ''R v Beune'', [http://canlii.ca/t/1knr3 2005 BCPC 175] (CanLII){{perBCPC|Dhillon J}}{{atL|1knr3|31}}<br> | ||
</ref> | |||
; Relationship with CDSA Definition | |||
The definition of "dwelling-house" in the Code has no interdependence with the definition in the CDSA.<Ref> | |||
{{CanLIIR|MacDonald|jb95g|2020 NSCA 69 (CanLII)}}{{AtL|jb95g|98}} | |||
</ref> | </ref> | ||
Revision as of 12:28, 2 November 2020
General Principles
"Dwelling house" is defined in section 2:
s. 2
...
"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.
- 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 Buiding
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.
- 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".[12]
The meaning of curtilage has been defined in domestic courts as "the land or yard adjoining a house, usually within an enclosure".[13]
- Relationship with CDSA Definition
The definition of "dwelling-house" in the Code has no interdependence with the definition in the CDSA.[14]
- ↑ R v Sappier, 2005 NBPC 37 (CanLII), per Ferguson J
- ↑ R v NM, 2007 CanLII 31570 (ON S.C.), per Hill J
- ↑ Sappier, supra
- ↑ R v DeWolfe (1988), 82 N.S.R.(2d) 175 (CA)(*no CanLII links)
- ↑ De Wolfe, supra - a house that was emptied a month prior was a dwelling
- ↑
R v Paquet [1978] O.J. No 980 (O.C.A.), 1978 CanLII 2510 (ON CA), per Martin JA - abandoned three years, falling apart
R v Tapley, 2013 NBPC 8 (CanLII), per Brien J - 3 months abandoned - ↑ R v Sappier, 2005 NBPC 37 (CanLII), per Ferguson J
- ↑ R v Evans, 1996 CanLII 248 (SCC), [1996] 1 SCR 8, at para 32
- ↑ R v Chomik, 2011 ABPC 152 (CanLII), per Kerby J
- ↑ R v Henderson, [1975] 1 WWR 360 (BCPC)(*no CanLII links)
- ↑ R v Nowlan, 2009 NBQB 117 (CanLII), per Ferguson J
- ↑ United States v Potts, 297 F.2d 68 [6th Cir. 1961]
- ↑
R v Le (TD), 2011 MBCA 83 (CanLII), per Scott CJ, at para 83
R v Beune, 2005 BCPC 175 (CanLII), per Dhillon J, at para 31
- ↑ R v MacDonald, 2020 NSCA 69 (CanLII), at para 98