349

Being unlawfully in dwelling-house

349 (1) 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.

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.

Annotations | French

• Section 349
• The term “enter” is defined in s 350(a).
• The term “dwelling-house” is defined in s 2. See annotations under s 348 that deal with the meaning of "dwelling-house"
• Presumption of Intent
• This provision requires proof of the following two elements: (i) the accused entered a dwelling-house without lawful excuse; and (ii) the accused had an intent to commit an indictable offence therein. For the second element, section 349(2) creates a presumption of intent that the accused can rebut by providing “evidence to the contrary”. To rebut the presumption, the accused does not need to provide a “reasonable and logical explanation” for being in the dwelling-house, but the accused must "lead evidence capable of raising a reasonable doubt about whether they were present in the dwelling-house with the intent to commit an indictable offence". Where the accused provides “evidence to the contrary” that is accepted as believable, the burden is on the Crown to prove the requisite intent beyond a reasonable doubt (R v Austin, [1968] SCR 891 at 893–894).
• The presumption under s 349(2) has been declared constitutional despite the fact that it imposes an onus on the accused to lead evidence to displace a presumption (R v Nagy (1988), 30 OAC 12 (CA)).
• Evidence to the contrary is any evidence that “tends to negate the accused’s intention to commit an indictable offence” after breaking and entering a place. This evidence may emerge from either the Crown’s case or the accused’s defence and must be believed by the trier of fact (the judge or the jury, as the case may be) (R v Atkinson, 2012 ONCA 380 at para 105; R v Campbell (1974), 17 CCC (2d) 320 at 322 (Ont CA).