R. v. Higgs, 2006 CanLII 10380 (MB PC)
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[12] This issue was decided in Manitoba by Justice McKelvey of the Manitoba Court of Queen’s Bench on the 29th of March 2005 in the case of R v. Bolczak.5 In essence, Justice McKelvey considered whether the sleeper berth of a semi was a dwelling house in a case that involved possession of marihuana for the purposes of trafficking. The marihuana was found in the sleeper part of the cab. Justice McKelvey indicated in her decision,
The term dwelling has been broadly interpreted by the Courts as it was said in a dissenting opinion in R v. Grant 1992 CanLII 5996 (BC CA), (1992), 14 C.R. (4th) 260 (CA) (an appeal to the Supreme Court of Canada did not consider the definition of a “dwelling house”) (at paragraph 70):
“Dwelling house” in that section is not an architect’s term. On the one hand, a boat is the “dwelling house” of one who lives aboard it and so may a packing case in which a “homeless” person sleeps and keeps his few pitiful belongings. On the other hand, a building which would be called a house in a real estate advertisement is not a “dwelling house” if no one dwells within it.
Mr. Bolczak testified he slept and ate most of his meals in the berth area during the course of his journey. He had a berth, fridge and a table in this confined area. It’s where he lived, albeit on a temporary basis while on the road. Section 2 of the Criminal Code defines a “dwelling house”, in part, as being a structure which is occupied on a temporary basis and includes a mobile unit.
I find the sleeper berth area is a “dwelling” within the meaning of the Act
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