In Chipunza v R. [2021] EWCA Crim 597, April 23, 2021, the accused was convicted of the offence of burglary in relation to a “dwelling”.  The break and entry was into a hotel room.  The Court of Appeal for England and Wales indicated that the “only issue at trial was whether the hotel room was a dwelling at the time of the burglary. The word dwelling is an ordinary word, albeit somewhat old fashioned in 2021” (at paragraph 13).

In section 2 of the Criminal Code of Canada, a “dwelling-house” is defined as meaning:

…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, and

(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence.  

The Court of Appeal noted that in “most cases, it is obvious whether or not a building is a dwelling. Houses and flats are generally built to be lived in, to be used as dwellings. The fact that no one is living in it at the time of a burglary does not necessarily render a building other than a dwelling (see ex parte Hudson above). We can envisage a situation where, for example, a newly built house may not yet be a dwelling. It may well be possible for a building built and previously used as a dwelling to become derelict, or to become a building site” (at paragraph 14).

As to whether a hotel room could constitute a “dwelling”, the Court of Appeal held that it could (at paragraph 15):

Hotels are not generally built to be used as dwellings. Their commercial function is to provide a temporary place to stay: generally private rooms and bathrooms with access to communal parts and ancillary services in exchange for a nightly payment. We are confident that where no one has checked into it, a standard hotel room cannot be said to be a dwelling. Where someone lives in a hotel long term and uses it as their home, the hotel or a part of it may be a dwelling. Some rooms may be provided within a hotel for staff to live in. Such rooms could be dwellings. Much would depend on the configuration of the rooms and the particular arrangements in each case.

In François c. R., 2021 QCCA 104, January 22, 2021, the accused was convicted of the offence of break and entry into a “dwelling-house”.  The entry was also into a hotel room.  The accused appealed from conviction, arguing that “there must be evidence that the room is occupied as a residence within the ordinary meaning of that word, that is, a place where a person habitually resides”.

The appeal was dismissed.  The Quebec Court of Appeal concluded as follows (Unofficial English Translation, at paragraph 44):

This argument is not convincing. In accordance with the decision in Henderson, authors Manning, Mewett and Sankoff write the following in their treatise on criminal law: “A hotel room is kept or occupied as a temporary residence and is thus a dwelling-house”.  This conclusion is consistent with the wording of s. 2 Cr. C. and with the aim of making a dwelling-house an aggravating factor for breaking and entering. In doing so, Parliament sought to recognize the expectation of privacy of occupants when they are in their home.  The same expectation exists for occupants of a hotel room.