Canadian Criminal Law/Offences/Unlawfully in a Dwelling

Unlawfully in a Dwelling
s. 349 of the Crim. Code
Election / Plea
Crown ElectionHybrid
JurisdictionProv. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Maximum6 months jail or $5,000 fine
Indictable 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)
Maximum10 years jail
Offence Elements
Sentence Principles
Sentence Digests



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.

(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.


Proof of the Offence


The following should be proven:

  1. identity of accused
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the accused entered into the premises
  5. the premises was a dwelling house
  6. the accused had no justification for entering the premises or permission to enter
  7. the accused intended to commit an indictable offence (presumed under s. 349(2))

Essential elements are in bold.[1]

  1. R. v. Payne, [2007] N.J. No. 303 (P.C.)



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 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 mes rea is presumed.[6]

  1. R v Beyo 2000 CanLII 5683 (ONCA)
  2. R. v. Ellis, [2012] N.J. No. 355 (P.C.) (“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.”)
  3. see R. v. Nagy, (1988), 45 C.C.C. (3d) 350 (Ont. C.A.)
    R. v. Beyo 2000 CanLII 5683 (ON CA), (2000), 144 C.C.C. (3d) 15 (Ont. C.A.)
    R v E(S) 1993 CanLII 3410 (NWTCA)
  4. R v Austin [1969] 1 CCC 97 SCC
  5. R v Nagy 1988 45 CCC 3d 350 (ONCA)
  6. R. v. Atkinson, [2012] O.J. No. 2520 (C.A.), at para 97, (“from evidence of the actus reus, the trier of fact presumes the mens rea, absent evidence to the contrary.”)

See Also