Last modified on 20 January 2013, at 18:20

Canadian Criminal Sentencing/Offences/Break and Enter

Break and Enter
s. 348 of the Crim. Code
Election / Plea
Crown Election Hybrid (non-dwelling)
Indictable (dwelling)
Jurisdiction Prov. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Maximum 18 months jail or $5,000 fine (non-dwelling)
Indictable Dispositions
Maximum 10 years jail (non-dwelling)
life (dwelling)
References
Offence Elements
Sentence Principles
Sentence Digests


Break and EnterEdit

LegislationEdit

348. (1) Every one who

(a) breaks and enters a place with intent to commit an indictable offence therein,
(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence therein, or
(ii) entering the place with intent to commit an indictable offence therein,

is guilty

(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

...
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.


CCC

ApplicationEdit

A first-time offender of good character who is charged with Break and Enter and where the offence is of a low-end nature (e.g. single incident, low value of property, property recovered), a suspended sentence may be appropriate.[1] If, however, there are multiple incidents, a custodial sentence is the usual punishment.[2]

Aggravating

  • whether it was a private dwelling rather than a commercial building;
  • extent of planning and sophistication
  • the building was occupied at the time;
  • the offender was aware or reckless to whether it was occupied;
  • used violence or threats of violence to a person or property
  • damage to property

The maximum penalty for Break and Enter on a dwelling house is life. The maximum penalty for Break and Enter on a premises other than a dwelling house is 10 year on indictable election and 6 months on summary election.

Certain provinces have set a benchmark for residential B&E's at 3 years.[3]

  1. R. v. Davenport [1977], 1 W.C.B. 176 (Ont.C.A.)
  2. Fry, [1981] O.J. No. 140 (C.A.) -- 9 months concurrent
  3. R. v. McAllister, 2008 NSCA 103

Home InvasionEdit

In Newfoundland, courts have suggested that a range of break and enter into dwellings is between 12 and 36 months.[1]

  1. R. v. Walbourne, [2012] N.J. No. 171 (P.C.), per Judge Orr

Ancillary OrdersEdit

  • Discretionary DNA order (Secondary designated offence)

See AlsoEdit