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Criminal - "Dwelling House". R. v. Griffiths
In R. v. Griffiths (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal conviction appeal, here from "six counts of breaking and entering a dwelling-house with intent to commit an indictable act, and one count of attempted break and enter".
Here the court considered the meaning of "dwelling house" in the Criminal Code:Issue 2: Definition of “Dwelling-House” under s. 348 of the Criminal Code
[8] The appellant further challenges the trial judge’s finding that the common areas of the apartment buildings constituted a “dwelling-house” under s. 348(1)(b) of the Criminal Code. She argues that because they are shared common spaces, the lobbies and storage rooms of residential apartment buildings are not a place of residence, or a structure closely associated with it, as the definition of dwelling house requires.
[9] Section 2 of the Criminal Code defines a “dwelling-house” as:the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes…
(a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way ...
[Emphasis added.] [10] Determining whether a space meets this definition depends on the nature of the premises and the expectation of privacy associated with them. See, e.g., R. v. Shin, 2015 ONCA 189, 322 C.C.C. (3d) 554, at para. 84; R. v. Paquet and Vieno (1978), 1978 CanLII 2510 (ON CA), 43 C.C.C. (2d) 23 (Ont. C.A.), at pp. 25-26; R. v. Henderson, 1974 CanLII 1797 (BC PC), [1975] 1 W.W.R. 360 (B.C. P.C.). The trial judge found that the common areas in this case—secured lobbies, mail rooms, and storage rooms restricted to residents—satisfied this test, as they formed an integral part of the residential complex and were not accessible to the general public.
[11] The evidence supports the trial judge’s conclusion. The surveillance footage and police investigation demonstrated that the appellant and her co-accused forcibly entered these secured areas, which were designed to protect the privacy and security of the residents. The presence of personal property in these areas, such as bicycles and packages, further underscores the residential character of these spaces.
[12] Finally, I do not accept the appellant’s argument that the trial judge’s finding conflicts with R. v. Yu, 2019 ONCA 942, 151 O.R. (3d) 244, leave to appeal refused, [2020] S.C.C.A. No. 38. Yu is not directly applicable because it is a s. 8 Charter case that did not interpret the definition of “dwelling-house.” Further, even assuming that Yu was relevant to this distinct issue, it does not assist the appellant. Yu ruled that the condominium residents in that case had a reasonable albeit diminished expectation of privacy in secured common areas because they were not accessible to the public. See at paras. 87-88. This ruling supports, rather than undermines, the trial judge’s finding that the residents here also reasonably expected that outsiders would be excluded from the secured common areas. A diminished expectation of privacy in the common areas of the residential buildings did not transform their nature from residential to public.
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