Break & Enter
Toronto Break & Enter Lawyer
The offences of break & enter, and the companion charge of “unlawfully in a dwelling house” are very serious offences. If the alleged break & enter occurred in a dwelling house (residential property), the maximum penalty is life imprisonment. Break & Enter charges can be very complicated. If there are no witnesses, these offences are typically prosecuted on the basis of circumstantial evidence, or forensic evidence. Brian Weingarten is a Toronto criminal lawyer who has successfully represented clients charged with both break & enter, as well as being unlawfully in a dwelling house.
What Does Break & Enter Consist of?
In order to be convicted of a break & enter, more is required than simply entering into a home or business without permission. In addition to “breaking” into or out of a place, the offence also requires the intention to commit an indictable offence.
Section 348 of the Criminal Code outlines three ways that the offence of break & enter may be made out. The section states:
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.
The Criminal Code does provide a shortcut to the Crown in break & enter cases. The Code provides that evidence that an individual broke and entered a place is, in the absence of evidence to the contrary, proof that he or she entered with the intent to commit an indictable offence.
As a result of this shortcut, once the Crown has made out a prima facie case against the accused, the onus falls to the accused to rebut the presumption by leading evidence of an explanation that may be reasonably true. A reasonable excuse, if believed, will then raise reasonable doubt as to the intention for breaking and entering the premises.
It should be noted that if an indictment particularizes the alleged indictable offence committed while breaking and entering, the presumption does not apply and the Crown must prove all of the elements beyond a reasonable doubt.
What are the Penalties for Break & Enter?
For sentencing purposes, the Criminal Code differentiates between breaking and entering a “dwelling house” (one’s home), and another place (such as a business or commercial property).
For charges related to dwelling houses, the charge can only proceed by way of indictment and the maximum penalty is life in prison.
For charges related to “other places,” the maximum penalty is 10 years in jail if the charge proceeds by way of indictment, and 6 months if the matter proceeds by way of summary
It should also be noted that the Criminal Code makes a “home invasion” an aggravating circumstance on sentencing. A “home invasion” is defined in s. 348.1 of the Criminal Code. Specifically, the Code states:
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.
What does “Enter” Mean?
Section 350 of the Criminal Code defines the term “enter” for the purpose of the offence. The Code states:
s. 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 by a permanent or temporary opening.
What If I Didn’t “Break” In?
Section 349 of the Criminal Code creates the offence of being unlawfully in a dwelling house. To be found guilty of this offence, the Crown need only prove that the accused was in a dwelling house without a lawful excuse, and that there was an intention to commit an indictable offence while inside. Unlike the charge of break & enter, the Crown does not have to prove that the accused, “broke” in. This is an important distinction because the Code actually defines the term, “break.” Specifically, the Code states:
(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.
What Are Some Defences to Break & EnterCharges?
There are a number of potential defences that might be raised. The available defences depend upon the circumstances of the offence and the available evidence. In some cases, it may be argued that the Crown has not proven the element of identification; meaning that the Crown has not proven that the accused was in fact the person who committed the offence. In some cases where there is no video surveillance evidence, and there are no civilian witnesses, the Crown may attempt to prove the charges by way of forensic evidence, such as fingerprint or DNA evidence. In certain circumstances, defence expert evidence might be able to counter the opinions and conclusions of the Crown’s expert.