Unlawfully in a Dwelling (Offence)

Unlawfully in a Dwelling
	s. 349 of the Crim. Code
Election / Plea
Crown Election	Hybrid; summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	Prov. Court; Sup. Court w/ Jury (); Sup. Court w/ Judge-alone (); * Must be indictable. Preliminary inquiry also available.
Summary Dispositions
Avail. Disp.	Discharge (730); Suspended Sentence (731(1)(a)); Fine (734); Fine + Probation (731(1)(b)); Jail (718.3, 787); Jail + Probation (731(1)(b)); Jail + Fine (734); Conditional Sentence (742.1);
Minimum	None
Maximum	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
Indictable Dispositions
Avail. Disp.	same as summary
Minimum	None
Maximum	10 years incarceration
Reference
	Offence Elements; Sentence Digests;

< Criminal Law/Sentencing
< Offences

Overview

Offences relating to unlawfully in a dwelling are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".

Pleadings

Template:PleadingsHybridList

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)

Offences under s. 349 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release

Offence(s)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By a Judge or Justice on a Release Order s. 515 to 519	Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act
s. 349	Template:ReleaseProfileAll

When charged under s. 349, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
"for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
where the offence involved a weapon, being a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

And, regardless of Crown election, if the offence alleged was one:

where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

Fingeprints and Photos

A peace officer who charges a person under s. 349 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
s. 349			(designated)

Offences under s. 349 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Being unlawfully in dwelling-house
349. (1) Every person who, without lawful excuse, the proof of which lies on that person, 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 not exceeding ten years or of an offence punishable on summary conviction.
Presumption
(2) 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.
R.S., 1985, c. C-46, s. 349; 1997, c. 18, s. 21.

– CCC

Proof of the Offence

Proving unlawfully in a dwelling under s. 349 should include:^[1] ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit "enters or is in" a premises; ☐ the premises is a "dwelling house"; ☐ the culprit has no "lawful excuse" for entering the premises or permission to enter; ☐ the culprit did the prohibited act intending to commit an indictable offence (presumed under s. 349(2))

↑ R v Payne, 2007 CanLII 36002 (NL PC), [2007] N.J. No. 303 (P.C.), per Gorman J

Interpretation of the Offence

The offence can be committed in two ways, either by "entering" or "being in" a dwelling-house without a lawful excuses with the intent to commit an indictable offence.^[1]

The mens rea is made out where 1) there is a general intent to enter the dwelling-house without lawful excuse,^[2] and 2) the specific intent to commit an indictable offence.^[3]

The crown must prove an entry and intent to commit an indictable offence therein.^[4]

The presumption under s.349(2) is a mandatory inference.^[5] Once the actus reus is proven that the accused was in the dwelling the mens rea is presumed.^[6]

Where the accused is found to have gained entry into a dwelling house through an open door, the offence overlaps with break and enter.^[7]

↑ R v Beyo, 2000 CanLII 5683, 144 CCC (3d) 15 (ONCA), per Rosenberg JA
↑ R v Ellis, 2012 CanLII 62646 (NL PC), [2012] N.J. No. 355 (P.C.), per Skanes J (“the first element of the offence [of unlawfully being in a dwelling-house] that must be proven by the Crown is that the defendant actually entered the [complainant’s] home.”)
↑ see R v Nagy, (1988), 45 CCC (3d) 350 (Ont. C.A.), 1988 CanLII 7138 (ON CA), per Morden JA
Beyo, supra
R v E(S), 1993 CanLII 3410 (NWTCA), per Hetherington JA
↑ R v Austin, [1968] SCR 891, 1968 CanLII 94 (SCC), per Spence J
↑ R v Nagy
↑ R v Atkinson, 2012 ONCA 380 (CanLII), [2012] O.J. No. 2520 (C.A.), per Watt JA, at para 97, (“from evidence of the actus reus, the trier of fact presumes the mens rea, absent evidence to the contrary.”)
↑ R v Johnson, 1977 CanLII 229 (SCC), [1977] 2 SCR 646, per Dickson J
R v Wiens, 2013 ABPC 15 (CanLII), per Pharo J

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s)	Crown Election	Maximum Penalty
s. 349 [unlawfully in a dwelling]	Summary Election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 349 [unlawfully in a dwelling]	Indictable Election	10 years custody

Offences under s. 349 are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s)	Crown Election	Discharge s. 730	Suspended Sentence s. 731(1)(a)	Stand-alone Fine s. 731(1)(b)	Custody s. 718.3, 787	Custody and Probation s. 731(1)(b)	Custody and Fine s. 734	Conditional Sentence (CSO) s. 742.1
s. 349	Summary
s. 349	Indictable

If prosecuted by summary conviction, all dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Offences under s. 349 are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Ranges

see also: Unlawfully in a Dwelling (Sentencing Cases)

In Newfoundland and Labrador, sentences range from a low end of 2 to 4 months to an upper end of 12 months.^[1]

↑ R v Pardy, 2016 CanLII 24209 (NL SCTD), per Handrigan J, at para 9

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order	Conviction	Description
DNA Orders	s. 349	If convicted under s. 349, there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election.
Weapons Prohibition Orders

General Sentencing Orders

Order	Conviction	Description
Non-communication order while offender in custody (s. 743.21)	any	The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738)	any	A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737)	any	A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).

General Forfeiture Orders

Forfeiture	Conviction	Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01))	any	Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to His Majesty the King on application of the Crown. NB: does not* apply to summary offences*.
Fine in Lieu of Forfeiture (s. 462.37(3))	any	Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491)	any	Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1)	any	Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province. NB: does not* apply to summary offences*.