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 Enter
editLegislation
edit348. (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
Application
editA 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]
- ↑ R. v. Davenport [1977], 1 W.C.B. 176 (Ont.C.A.)
- ↑ Fry, [1981] O.J. No. 140 (C.A.) -- 9 months concurrent
- ↑ R. v. McAllister, 2008 NSCA 103
Home Invasion
editIn Newfoundland, courts have suggested that a range of break and enter into dwellings is between 12 and 36 months.[1]
- ↑ R. v. Walbourne, [2012] N.J. No. 171 (P.C.), per Judge Orr
Ancillary Orders
edit- Discretionary DNA order (Secondary designated offence)