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Canadian Criminal Law/Offences/Break and Enter

< Canadian Criminal Law | Offences
Break and Enter
s. 348 of the Crim. Code
Election / Plea
Crown ElectionHybrid (non-dwelling)
Indictable (dwelling)
JurisdictionProv. Court
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
Summary Dispositions
Maximum18 months jail or $5,000 fine (non-dwelling)
Indictable Dispositions
Maximum10 years jail (non-dwelling)
life (dwelling)
References
Offence Elements
Sentence Principles
Sentence Digests
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Overview

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The offence of break and enter encompasses situations where the accused was trespassing or attempted to trespass on private enclosed property with an intent to commit an indictable offence (i.e. a non-summary criminal offence). The most typical form of break and enter is a break into a commercial or private residence in order to steal property. The most serious form of break and enter is where the accused did the act knowing that there were people present and was prepared to use force against them in a robbery-like fashion. This is known as a "home invasion".

A less frequent form of break and enter is the entry into private property in order to confront a person found within intending to assault or threaten with violence. The parties normally know each other and arises from a dispute between them, sometimes domestic.

The evidence in most of these cases is circumstantial, and so identity is often a key point of litigation. In many cases the accused was found at some time later with stolen items in their possession for which the Crown can use to establish guilt by way of the doctrine of recent possession.

Legislation

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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.

...
R.S., 1985, c. C-46, s. 349; 1997, c. 18, s. 21.


– CCC

Breaking and entering to steal firearm
98. (1) Every person commits an offence who

(a) breaks and enters a place with intent to steal a firearm located in it;
(b) breaks and enters a place and steals a firearm located in it; or
(c) breaks out of a place after
(i) stealing a firearm located in it, or
(ii) entering the place with intent to steal a firearm located in it.

...
Punishment
(4) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life.
R.S., 1985, c. C-46, s. 98; R.S., 1985, c. 27 (1st Supp.), s. 13; 1991, c. 40, s. 11; 1995, c. 39, s. 139; 2008, c. 6, s. 9.


– CCC

Proof of Offence

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The Crown prosecutor should prove the following elements:

s. 348(1)(a) - breaks with intent

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  1. identity of the accused as the culprit
  2. the time and date of the incident
  3. the jurisdiction of the incident
  4. the accused entered into the premises
  5. the accused had no justification for entering the premises or permission to enter
  6. the accused intended to commit an indictable offence (presumed under s. 348(2)(a))
  7. location of place broken into (evidence of access method)
  8. whether the place was a dwelling-house
  9. ownership of the place
  10. condition of place just prior to the break-in
  11. condition of place after the break-in
  12. amount of damage done

s. 348(1)(b) - breaks and commits

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  1. identity of the accused as the culprit
  2. the time and date of the incident
  3. the jurisdiction of the incident
  4. the accused entered into the premises
  5. the accused had no justification for entering the premises or permission to enter
  6. the accused committed an indictable offence (theft, mischief, etc.)
  7. location of place broken into (evidence of access method)
  8. location of place of exit (optional)
  9. whether the place was a dwelling-house
  10. ownership of the place
  11. condition of place just prior to the break-in
  12. condition of place after the break-in
  13. amount of damage done
  14. ownership of goods taken
  15. continuity of goods

s. 348(1)(c) - breaks out

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-identity of the accused as the culprit - the time and date of the incident - the jurisdiction of the incident - the accused was on the premises - the accused had no justification for being the premises or permission to be there - the accused intended to commit an indictable offence OR accused committed an indictable offence (theft, mischief, etc.) (presumed under s. 348(2)(a)) - location of place broken out of (evidence of access method) - whether the place was a dwelling-house - ownership of the place - condition of place just prior to the break-out - condition of place after the break-out - amount of damage done - ownership of goods taken - continuity of goods

Interpretation

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Breaking

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Section 321 defines "break":

321. In this Part,

“break” means
(a) to break any part, internal or external, or
(b) to open any thing that is used or intended to be used to close or to cover an internal or external opening;

...


– CCC

"Breaking" can include an actual break as defined in s. 321 or it can be "constructive" breaking. "Constructive" breaking can be established by the accused simply walking through a doorway.[1] However, simply entering into a structure through an open door does not on its own amount to "breaking". [2] This includes staying in a store until after closing time.[3] Likewise, entering through an unlocked but closed door after knocking does not amount to breaking.[4]


  1. ↑ R. v. Johnson, [1977] 2 SCR 646 1977 CanLII 229
  2. ↑ R. v. Jewell (1974), OJ No 931 (Ont. C.A.)
  3. ↑ R. v. Fairbridge, 1984 AJ. NO 828 (Alta. C.A.)
  4. ↑ R. v. House, 2012 NLCA 41 at 13-17

Entering

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An entrance is defined in s.350: [1]

Entrance
350. For the purposes of sections 348 and 349,

(a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and
(b) a person shall be deemed to have broken and entered if
(i) he obtained entrance by a threat or an artifice or by collusion with a person within, or
(ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening.

...


– CCC

There is a statutory presumption under s.350(b)(ii) to require the accused to prove lawfulness of entry. However, this has been established as unconstitutional.[2]

The time of the break is relevant to determine whether such a "lawful justification or excuse" exists. [3]

When concerning break and enter under s. 98, entrance was defined as follows:

s. 98
...
Entrance
(3) For the purposes of this section,

(a) a person enters as soon as any part of his or her body or any part of an instrument that he or she uses is within any thing that is being entered; and
(b) a person is deemed to have broken and entered if he or she
(i) obtained entrance by a threat or an artifice or by collusion with a person within, or
(ii) entered without lawful justification or excuse by a permanent or temporary opening.

...
R.S., 1985, c. C-46, s. 98; R.S., 1985, c. 27 (1st Supp.), s. 13; 1991, c. 40, s. 11; 1995, c. 39, s. 139; 2008, c. 6, s. 9.


– CCC

  1. ↑ found to constitutional in R. v. T.B.K., [1998] CRR 328 (Ont.CA)
  2. ↑ R. v. Singh (1987), 41 C.C.C. (3d) 278 (Alta. C.A.)
    see also R. v. K., 1998 CanLII 925 (ON C.A.)
  3. ↑ R. v. Farbridge (1984), 15 C.C.C. (3d) 521 -- Accused hid in store lawfully until closing in order to steal. This was not considered breaking

Place

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Section 348(3) defines place as:

Definition of “place”
(3) For the purposes of this section and section 351, “place” means

(a) a dwelling-house;
(b) a building or structure or any part thereof, other than a dwelling-house;
(c) a railway vehicle, a vessel, an aircraft or a trailer; or
(d) a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.


– CCC

A place has been found, in certain circumstances, to include a fenced off area surrounding a structure.[1]

The concierge area behind a locked gate as well as the desk and drawer within fall in the definition of a "place".[2]

When concerning a charge under s. 98, "place" refers to "any building or structure — or part of one — and any motor vehicle, vessel, aircraft, railway vehicle, container or trailer."(98(2))

  1. ↑ R. v. R.J.F., 1994 CanLII 7611 (NS C.A.)
  2. ↑ R. v. Charron, 2005 BCCA 607 (CanLII)

Dwelling House

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"Dwelling house" is defined in section 2:

s. 2
...
“dwelling-house” means 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;


– CCC

Detached building on private property does not usually amount to dwelling. [1]

An incomplete building does not constitute a dwelling.[2] However, an abandoned building however is one.[3]

A driveway is not a dwelling house; it is a place where people drive and park their vehicles.[4]

A motel room,[5] camp,[6] can be a dwelling.

  1. ↑ R. v. N.M., 2007 CanLII 31570 (ON S.C.)
  2. ↑ R. v. Sappier, 2005 NBPC 37
  3. ↑ R. v. DeWolfe (1988), 82 N.S.R.(2d) 175 (CA)
  4. ↑ R. v. Evans , [1996] 1 S.C.R. 8 at para. 32
  5. ↑ R. v. Henderson, [1975] 1 WWR 360 (BCPC)
  6. ↑ R. v. Nowlan, 2009 NBQB 117

Intent to Commit

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To make out the charge under 348(1)(a), there must be an "intent" to commit an indictable offence and the intent must be present at the time of the entering. Breaking and entering into a place is not a criminal offence without a sign of an offence while inside. [1] A person being chased into a house and damages the door is not enough to form intent to commit an indictable offence.[2]

Section 348(2) provides that where there is certain evidence of the accused breaking in or out of a place, there is a rebuttable presumption of an intent to commit an indictable offence.

Presumptions
(2) For the purposes of proceedings under this section, evidence that an accused

(a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or
(b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after
(i) committing an indictable offence therein, or
(ii) entering with intent to commit an indictable offence therein.


– CCC

  1. ↑ R. v. Taylor, [1984] ___ (BCSC)
  2. ↑ R. v. Schizgal, 2001 BCCA 238

Doctrine of Recent Possession

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See: Canadian_Criminal_Law/Doctrines_of_Liability

Misc issues

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  • s. 491.2(1) -- photographic evidence
  • s. 657.1(1) -- Proof of ownership and value of property

Case Digests

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  • R. v. Thompson, 2009 NSPC 51 -- acquitted for loss of continuity and rebutting presumption under 348(2)(a).

See also

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