INTRODUCTION AND BRIEF DESCRIPTION
Evidence of entering or being in a dwelling-house without lawful excuse is proof of intent to commit an indictable offence, unless proven otherwise.
SECTION WORDING
349(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.
EXPLANATION
Section 349(2) of the Criminal Code of Canada is a provision that relates to criminal proceedings for breaking and entering into a dwelling-house with intent to commit an indictable offense. The section is important because it creates a legal presumption that an accused person who has entered or was found inside a dwelling-house, without lawful excuse, did so with the intent to commit an indictable offense. The intent to commit an indictable offense must be proven beyond a reasonable doubt in a criminal proceeding. This presumption means that if an accused person is found inside a dwelling-house without any apparent lawful excuse, the prosecution does not need to prove intent to commit an indictable offense. Instead, it is presumed that the accused person had the intent to commit an indictable offense in the dwelling-house unless there is evidence to the contrary. The section also has legal safeguards in place to ensure that the presumption of intent is not applied automatically without due consideration. It requires that the accused must have entered the dwelling-house without lawful excuse, which means there was no permission given to enter the dwelling-house, or that the entry was not authorized by law. In summary, Section 349(2) of the Criminal Code of Canada creates a legal presumption that an accused person who entered or was found in a dwelling-house without lawful excuse did so with intent to commit an indictable offense unless there is evidence to the contrary. This provision is meant to deter breaking and entering into dwellings and to make it easier for the prosecution to prove intent in related criminal proceedings.
COMMENTARY
Section 349(2) of the Criminal Code of Canada has become a controversial topic among criminal justice enthusiasts. It has often been argued that this section provides judges with too much discretion in determining whether an accused is guilty of an offence involving a dwelling-house. The section states that if an accused enters or is found in a dwelling-house without lawful excuse, then in the absence of any evidence to the contrary, it can be inferred that they had the intention to commit an indictable offence inside the house. The idea behind this section is to protect residents from the possibility of invasion by strangers, and also to provide a platform for the speedy prosecution of such crimes. It has been argued by supporters of the enactment that this provision reduces the burden of the prosecution, as it requires them to only prove that the accused was present in the dwelling house without lawful excuse. Once this has been established, it is then up to the accused to disprove that they had the intention to commit an indictable offense. There are, however, a few criticisms of this section. Firstly, it has been argued that this provision allows for the dilution of the presumption of innocence principle that is so fundamental to the Canadian criminal justice system. A number of legal experts consider this violation of the sacred principle as a serious threat to individual liberties. In addition, some assert that section 349(2) could lead to unfair or inaccurate decisions. This is because the provision does not require the prosecution to establish the accused had a specific unlawful purpose, such as theft or assault. Critics claim that this lack of specificity allows judicial officers wide discretion in determining the accused's intent, and as such, it is prone to unwarranted findings of guilt. Nevertheless, the section has found support among legal experts who believe that this type of provision is necessary to reduce the number of break-ins, home invasions, and other property-related crimes. They contend that this section acts as a deterrent for potential burglars, as it raises the stakes for them by increasing the likelihood of facing a conviction and harsh sentencing if they break into someone's house. In conclusion, while Section 349(2) of the Criminal Code of Canada has its supporters, it also has its fair share of detractors. The provision has been contentious among criminal justice enthusiasts, and it is clear that the current wording leaves plenty of room for judicial discretion. While the provision could be seen as an infringement of individual liberties, some Canadian experts argue that it is necessary to reduce the occurrence of break-ins and home invasions. Ultimately, any amendments to the current wording must strike a balance between protecting Canadian residents' rights and ensuring that justice is served promptly.
STRATEGY
Section 349(2) of the Criminal Code of Canada creates a presumption of intent to commit an indictable offense when an accused enters or is in a dwelling-house without lawful excuse. This presumption places an onus on the accused to provide evidence to the contrary. As a result, there are several strategic considerations when dealing with this section of the Criminal Code of Canada. The first consideration is to challenge the evidence that has been presented. If there is no evidence that shows the accused entered or was in the dwelling-house, then the presumption cannot be applied. Therefore it is important to scrutinize the evidence that is presented and challenge its validity or sufficiency. This strategy could involve cross-examining witnesses or presenting evidence that contradicts the prosecution's version of events. Another strategic consideration is to find a lawful excuse for the accused's presence in the dwelling-house. A lawful excuse could be a reasonable explanation for why the accused was in the dwelling-house. For example, if the accused was there to perform a lawful duty or to conduct a lawful business, then this could be considered a lawful excuse. A valid lawful excuse could undermine the presumption of intent and lead to an acquittal. A third strategic consideration is to plead guilty to a lesser offense. If the evidence against the accused is strong, it may be advantageous to plead guilty to a lesser charge instead of trying to challenge the presumption of intent. This strategy could result in a more favorable outcome for the accused in terms of sentencing or penalties. A fourth strategic consideration is to rely on an alibi defense. An alibi defense is a claim that the accused was not present at the scene of the crime at the time of the offense. This strategy could involve providing evidence that shows that the accused was elsewhere at the time of the offense, thereby undermining the presumption of intent. Finally, it may be necessary to negotiate a plea bargain with the prosecution. A plea bargain is a negotiation between the accused and the prosecution to plead guilty to a lesser charge or to receive a reduced sentence in exchange for providing cooperation or information. This strategy could be used when the evidence against the accused is strong, and the accused wants to minimize the risks associated with a trial. In conclusion, there are several strategic considerations when dealing with section 349(2) of the Criminal Code of Canada. These strategies could involve challenging the evidence, finding a lawful excuse, pleading guilty to a lesser offense, relying on an alibi defense, or negotiating a plea bargain. The right strategy will depend on the specific circumstances of each case, and it is important for accused persons to seek the advice of a competent criminal defense lawyer when facing charges under this section.