348.1

Aggravating circumstance — home invasion

348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,

(a) knew that or was reckless as to whether the dwelling-house was occupied; and

(b) used violence or threats of violence to a person or property.

Annotations | French

  • Section 348.1

     

  • The term “dwelling-house” is defined in s 2 and courts have interpreted the term under s 348.

     

  • The term “property” is defined in s 2.

     

  • A “home invasion” requires the following three elements:

     

    • (1) the accused committed one of the listed crimes in relation to a dwelling-house;

       

    • (2) the accused had knowledge or was reckless to the fact that the dwelling-house was occupied; and

       

    • (3) the accused used or threatened to use violence against a person or property (R v Campeau, 2009 SKCA 3 at para 24).

       

  • The relationship between the accused and the occupant of the dwelling-house does not affect the application of this section. This section applies whether the dwelling-house is occupied by a stranger to or a relative of the accused (R v Fraser, 2007 SKCA 113 at para 25).

     

  • Violence does not need to occur inside the dwelling-house to satisfy the third essential element for a home invasion. For instance, if an accused pulls an occupant out of the house and uses violence against the occupant in the course of committing one of the listed offences, that element will be satisfied (R v Ginnish, 2014 NBCA 5 at para 46).

     

  • Sentences

     

  • When determining an appropriate sentence for an offence that includes the aggravating circumstance of home invasion, courts will consider the following factors:

     

    • (i) the accused’s motive for entering the dwelling-house;

       

    • (ii) the degree of violence the accused used or threatened to use against the victim;

       

    • (iii) the nature of the relevant listed offence; and

       

    • (iv) other relevant factors of the listed offence (R v Campeau, 2009 SKCA 3 at para 32).