INTRODUCTION AND BRIEF DESCRIPTION
Entering or being in a dwelling-house with intent to commit an indictable offence is a criminal offense punishable on summary conviction or by imprisonment for up to 10 years.
SECTION WORDING
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.
EXPLANATION
Section 349(1) of the Criminal Code of Canada is focused on the offence of burglary or breaking and entering. This section states that any individual who enters or remains in a dwelling-house without any lawful reason or justification with the intent to commit an indictable offence is guilty of an indictable offense. This means that a person can be found to have committed a crime under this section if they enter or remain in someone else's home without permission, with the intention of stealing, assaulting someone, or committing any other criminal offence. The section further highlights that the burden of proving that the individual had a lawful reason to enter or remain in the dwelling-house rests on that person. This means that if someone is charged under this section, they must prove that they had a lawful excuse for being in the house, such as having permission to enter or remain, or that they were there for a lawful purpose. The punishment for an offence under section 349(1) is quite severe and can lead to an imprisonment term of up to 10 years if prosecuted as an indictable offence. Alternatively, if prosecuted as a summary conviction, the offender may be punished with lesser penalties such as fines or short-term imprisonment. In essence, Section 349(1) exists to protect the sanctity and security of people's homes and to deter individuals from committing crimes in private residences. It is an important provision in the Criminal Code of Canada that aims to ensure that individuals feel safe and secure within their homes and that anyone who threatens this security will face the consequences of their actions.
COMMENTARY
Section 349(1) of the Criminal Code of Canada outlines the offence of breaking and entering into a dwelling-house with intent to commit an indictable offence. This section of the law lays out the serious nature of such actions, as it is considered a criminal offence that carries significant punishment. Breaking and entering into a dwelling-house can be defined as an individual entering a residence without authorization, either by force or through a breach of security, such as picking a lock. The intent to commit an indictable offence further enhances the severity of the act, as it demonstrates premeditation and planning. The phrase "lawful excuse" in this section refers to situations where an individual may have entered a dwelling-house without express permission, but with a legitimate reason, such as to conduct a repair or to assist in an emergency situation. It is important to note that the burden of proof lies on the accused to demonstrate they had a lawful excuse for entering the dwelling-house. This places a significant amount of scrutiny on the accused, as they must be able to demonstrate their reason for entering the home as necessary and not for nefarious purposes. The penalties for breaking and entering into a dwelling-house with intent to commit an indictable offence can be significant. Offenders can be sentenced to a maximum of ten years imprisonment, indicating society's severe view of this type of crime. Additionally, those convicted may face a lifetime criminal record, which can have serious consequences for future employment and educational opportunities, as well as potential immigration challenges. In some cases, this offence may be punishable as a summary conviction offence, which means it can be tried in a lower court. The penalty for a summary conviction offence is imprisonment for a term of up to two years, along with mandatory probation and other restrictions. The Criminal Code of Canada recognizes the sanctity of the home and the privacy rights of individuals. As such, breaking and entering into a dwelling-house is viewed as a serious violation of these rights, particularly when combined with the intent to commit a criminal offence. In conclusion, Section 349(1) of the Criminal Code of Canada highlights the severity of breaking and entering into a dwelling-house with intent to commit an indictable offence. It serves as a powerful deterrent against such crimes, highlighting Canadian society's commitment to protecting individual privacy and property rights. Anyone who is facing charges under this section should consult with an experienced criminal defence lawyer for guidance and advice on how to proceed.
STRATEGY
Understanding section 349(1) of the Criminal Code of Canada is essential for anyone facing charges under this section or representing a client facing such charges. Given the serious nature of the offence and the potential for significant penalties, it is important to be aware of the strategic considerations that should be made. Some strategies that could be employed include negotiating a plea deal, challenging the evidence against the accused, and gathering evidence in support of a potential defence. One of the first strategic considerations to be made would be to determine whether a plea deal is appropriate in the circumstances. This may involve negotiating with the prosecution to have the charges reduced or withdrawn in exchange for a guilty plea to a lesser offence. In some cases, a plea deal may be the best option for the accused, as it could result in a lighter sentence and avoid the risk of a conviction and a potentially longer sentence. Another strategy that could be employed is to challenge the evidence against the accused. This could involve questioning the legality of the search or arrest leading to the charges, or challenging the reliability of the evidence presented by the prosecution. For example, if the prosecution's case relies heavily on witness testimony, it may be possible to challenge the credibility of the witness or to demonstrate inconsistencies in their testimony. Gathering evidence in support of a potential defence is another important strategic consideration. This could involve conducting an independent investigation, seeking expert opinions, or presenting character evidence in support of the accused. For example, if the accused can demonstrate that they did have a lawful excuse for entering the dwelling-house, such as if they were an emergency responder or had been invited onto the property by the owner, this could be used as a defence in the case. It should be noted that the burden of proof lies with the accused to demonstrate that they had a lawful excuse for entering the dwelling-house with intent to commit an indictable offence. This means that any evidence in support of a potential defence will need to be carefully gathered and presented in a convincing manner. In summary, there are several strategic considerations that should be made when dealing with section 349(1) of the Criminal Code of Canada. These may include negotiating a plea deal, challenging the evidence against the accused, and gathering evidence in support of a potential defence. With careful preparation and the right legal representation, it may be possible to mount a strong defence and avoid the most serious penalties associated with this offence.