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Crash Course On Break and Enter Criminal Offence

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This blog is intended to provide an overview of the Criminal Code offence of Break and Enter. Section 348 of the Criminal Code states the following about the criminal offence of Break and Enter:

348 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 committing an indictable offence therein or entering the place with intent to commit an indictable offence therein is guilty

(d) of an indictable offence and liable to imprisonment for life, if the  offence is committed in relation to a dwelling-house; or

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

 Definitions

“Break” means to break any part, internal or external, or to open any thing that is used or intended to be used to close or to cover an internal or external opening.

“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

“Place” means a dwelling-house, a building or structure or any part thereof other than a dwelling-house, a railway vehicle, vessel, aircraft or trailer, or a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes

Section 348(1) contains three distinct offences:

(1) breaking and entering with intent

(2) breaking and entering and committing an offence and

(3) breaking out.

First Offence

The required act for the first offence is to break and enter a place. If a person does not actually enter a place but serves as a driver or lookout, this act may be sufficient to be found guilty of the offence.  The only specified mental element is that the accused intended to commit an indictable offence in the place. The intention must be present at the time of entry. The offence is one of specific intent, and the requisite intent may be proved by circumstantial evidence or statutory presumption. The Crown need not prove an intention to commit a specific indictable offence if none is alleged in the information. However, there must be proof that the accused intended to commit some indictable offence inside the premises. The Crown does not need to prove that the accused broke a door or smashed a window to get in.

Second Offence

The required act for the second offence is to break and enter a place and commit an indictable (serious) offence in that place. For the second offence, there is no specified mental element. It has been held that the mental element required is that for the offence alleged to have been committed in the premises.

Third Offence

The required act for the third offence is to break out of a place after either committing an indictable offence in the place or entering the place. For the third offence, the only specified mental element is that for the second way of committing the offence. In that case, the accused must have entered the place with intent to commit an indictable offence.

Crown Prosecution

The Crown assigned to your case has a job. His or her job entails providing all of the elements of the offence you are charged with. This is no simple task and rest assured, your criminal defence lawyer will do everything possible to make the task even harder.

To secure a conviction, the Crown prosecutor is required to prove the following elements:

Section 348(1)(a) of the Criminal CodeBreaks with Intent

  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

Section 348(1)(b) of the Criminal CodeBreaks and Commits

  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

Section 348(1)(c) of the Criminal Code – Breaks Out

  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 was on the premises
  5. 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))
  6. location of place broken out of (evidence of access method)
  7. whether the place was a dwelling-house
  8. ownership of the place
  9. condition of place just prior to the break-out
  10. condition of place after the break-out
  11. amount of damage done
  12. ownership of goods taken
  13. continuity of goods

The Crown bears the burden of proof, beyond a reasonable doubt, to demonstrate the offence of break and enter. Our role as defence lawyers at Aitken Robertson is to challenge the Crown’s case and identify any weaknesses. We advocate zealously on behalf of our client.

Contact the Aitken Robertson Team of Defence

Contact our office for a free 30-minute consultation. We accommodate both telephone and in-person consultations. We have offices across the GTA. Best of all, we offer flat fees so you can focus on your case and not be distracted by your legal bill!

 

 

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