Defence argues these spaces don’t meet this definition since they have reduced privacy expectations
The Ontario Court of Appeal ruled that the evidence in a recent case supported the trial judge’s conclusion that an apartment building’s common areas amounted to a “dwelling-house” as defined by s. 348(1)(b) of the Criminal Code.
R. v. Griffiths, 2025 ONCA 511, concerned convictions for six counts of breaking and entering a dwelling-house with intent to commit an indictable act and one count of attempted breaking and entering under ss. 348(1)(b) and 463(a) of the Criminal Code, 1985.
Defence counsel claimed in closing submissions that the appellant entered the condominium’s common areas, which were not a “dwelling-house” under the Criminal Code, since they were a shared space with a reduced expectation of privacy.
Justice Gregory Pockele of the Ontario Court of Justice asked counsel to email relevant case law, which both parties’ lawyers did. During the next hearing, the trial judge acknowledged he had received their submissions.
The judge determined that the apartment buildings’ common areas – secured lobbies, mail rooms, and storage rooms restricted to residents – constituted a “dwelling-house” under s. 348(1)(b). The judge found these common areas integral to the residential complex and inaccessible to the general public.
On Aug. 22, 2023, the judge convicted the appellant of the charges. On Nov. 21, 2023, the judge sentenced her to 18 months’ imprisonment, followed by two years’ probation.
The appellant alleged three appeal grounds. Specifically, she argued that the judge erroneously interpreted “dwelling-house” under s. 348, breached her rights to be present at trial and receive procedural fairness, and made an error in principle when assessing whether a conditional sentence was appropriate.
The appellant asserted that residential apartment buildings’ lobbies and storage rooms were not places of residence or structures closely associated with such, as the definition of dwelling-house required, because they were shared common spaces.
The Court of Appeal for Ontario dismissed the conviction appeal and affirmed the trial judge’s ancillary orders.
First, the appeal court saw no error in the judge’s interpretation of the term “dwelling-house,” as defined by s. 348 of the Criminal Code.
According to the appeal court, deciding whether a space fell within a dwelling-house under the Criminal Code depended on the premises’ nature and the associated privacy expectations.
The appeal court upheld the judge’s conclusion that the common areas in this case met the test. The appeal court said the surveillance footage and police investigation evidence showed that the appellant and her co-accused forcibly entered secured areas, which aimed to safeguard the residents’ privacy and security.
The appeal court added that these secured areas contained personal property like bicycles and packages, highlighting the residential nature of these spaces.
The appeal court rejected the appellant’s argument that the judge’s findings contradicted those in R. v. Yu, 2019 ONCA 942, which stated that condominium residents had reasonable but diminished privacy expectations in secured common areas since the public could not access them.
The appeal court did not find Yu directly applicable or helpful here since it involved s. 8 of the Canadian Charter of Rights and Freedoms and did not interpret the definition of a dwelling-house. The appeal court said Yu supported the judge’s conclusion in this case that the residents reasonably expected the exclusion of outsiders from secured common areas.
The appeal court added that diminished privacy expectations in residential buildings’ common areas did not convert these buildings’ character from residential to public.
Next, the appeal court ruled that the judge neither violated the appellant’s right to be present at trial nor denied her the opportunity to instruct her counsel. The appeal court said the appellant’s absence from the email exchange did not impact trial fairness.
The appeal court held that the lack of further oral submissions did not breach procedural fairness. The appeal court found that the judge:
Lastly, the appeal court granted leave to appeal the sentence, allowed the sentence appeal, and varied the appellant’s sentence. The appeal court substituted a 15 months’ imprisonment term, followed by two years’ probation, upon reducing the sentence’s custodial portion by three months.
The appeal court held that the judge erred in principle by using the appellant’s refusal to plead guilty as a basis to find a lack of remorse and increase her sentence’s severity.
The appeal court said its varied sentence accepted the appellant’s remorse as a mitigating factor and refrained from punishing her for exercising her constitutional trial rights. The appeal court added that the adjusted sentence reflected the judge’s findings on aggravating factors and the necessity for denunciation and deterrence.
