Duhaime's Law Dictionary


Home Invasion Definition:

A break and enter of occupied residential premises with forced confinement, assault or battery of occupants.

A break and enter of occupied residential premises with forced confinement, assault or battery of occupants.

Canada's Criminal Code has added-on to their break and enter offence suggesting to the sentencing Court that it consider the aggravating factor of home invasion, with this new ¶348.1:

"If a person is convicted of an offence under any of ¶279(2) (unlawful confinement) or ¶343 (robbery), ¶346 (extorsion) and ¶348 (break and enter) 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, ... knew that or was reckless as to whether the dwelling-house was occupied; and ...used violence or threats of violence to a person or property."

In R v Wright, cited at 2006 CarswellOnt 7721, the Ontario Court of Appeal described it, as of 2006, as “a serious and prevalent crime in our society” and where:

“... invaders’ forced entry into the victims’ home for the purposes of committing a theft or robbery, knowing that, or being reckless as to whether the home was being occupied, and by the accompanying use or threatened use of violence with guns, together with the confinement of the occupants of the home.”

Editor’s note (LDuhaime, 2010-03-23): it is doubtful that the presence of guns is necessary and that any such offence using another weapon, such as a knife. See, for example, R v Wilderman 2007 ABPC 21, published at canlii.org/en/ab/abpc/doc/2007/2007abpc21/2007abpc21.html:

“Where the break, enter and assault is very serious, and weapons are used to perpetrate a robbery, the offence may properly be classified as a home invasion,) or conduct equivalent to an assault, would suffice to make the offence."

In R v S, as 2006 decision of the Ontario Court of Appeal, cited as 210 C.C.C. (3d) 296, and published at canlii.org/en/on/onca/doc/2006/2006canlii22101/2006canlii22101.html:

Home invasion is not a specific crime provided for in the Criminal Code or any other statute.

"However, as the trial judge observed, a phenomenon that society has come to label home invasion is becoming more and more prevalent. The label evokes considerable emotion on the part of those reacting to it.

"Generally, it refers to an offence relating to a home or, in the jargon of the law, a dwelling-place.

"But what is it about the offence that characterizes it as a home invasion? Although the term home invasion is not defined in the Criminal Code ... ¶348.1 of the Code provides an instructive reference point. Under the heading Aggravating circumstance -- home invasion, ... directs a court sentencing an adult person convicted of unlawful confinement, robbery, extortion, or break and enter in relation to a dwelling house to 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,
  • knew that or was reckless as to whether the dwelling-house was occupied; and
  • used violence or threats of violence to a person or property....
"In my view, it is the presence of the occupants of the home, with the violation of their sense of sanctity and security in that place and the attendant exposure to the threat (express or implied) of physical or psychological harm, that sets the home invasion apart from break and enter, robbery, and other offences committed in relation to a home....

"(T)the main features of home invasion include breaking and entering a dwelling place for purposes of committing a theft or robbery, knowing that (or being reckless as to whether) the home is being occupied, and using or threatening to use violence. The presence of weapons is often a factor, as is the confinement of the occupants of the home in some fashion.

"For the offence to qualify as a home invasion, I would add to the foregoing that the entry to the dwelling need not be only for the purposes of robbery or theft -- or result in those offences being committed. The crimes committed within the dwelling may include other offences involving violence against the person, as, for example, assault, sexual assault, or unlawful confinement."

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