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Is the Porridge Really Worth It? A Look at the Criminal Offence of Breaking and Entering

While Goldilocks is lucky that she did not end up behind bars, the rest of us may not fare so well. Breaking and entering is a serious criminal offence. If you are found guilty and convicted of this offence, the punishment is dire and the consequences life altering. So, is it worth the porridge? Probably not, because most of us are not guaranteed a fairy tale ending.


An individual who breaks and enters must commit or have the intention to commit an indictable offence.

What is an indictable offence?

Indicatable offences are one of three categories of offences in Canadian Law. Namely, (1) indictable offences, (2) summary conviction offences and (3) hybrid offences. Indicatable offences are serious offences such as murder, robbery, and drug trafficking among others and attract severe punishment. In the case of a break and enter, if it takes place in a dwelling-house, the maximum punishment is life imprisonment. Typically, persons charged with indictable offences are given the opportunity to select their mode of trial. Simply put, the option to choose a judge alone trial or a trial by jury.

Summary conviction offences are less serious and can proceed summarily i.e. without a trial by jury or indictment. Hybrid offences are those offences where the Crown can elect to proceed either summarily or by indictment.

Break and Enter in the Criminal Code

Breaking and entering is a serious offence and found in Part IX of the Criminal Code. This offence is classified under Offences Against Rights of Property.

Section 348.1 states:

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.


There are two presumptions as indicated in s. 348 (2) of the Code. Where there is no evidence to prove to the contrary, it is presumed that evidence that an individual broke and entered a place is proof that they did so with intention to commit an indictable offence or in the case of breaking out of a place, committed an indictable offence or had the intention to commit an indicatable offence.

Definition of Place

The statute defines place in s. 348 (3) as:

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.


Individuals who have been charged with Break and Enter may be able to rely on a number of defences to potentially avoid a conviction.

In R. v. Gawel [1984], the accused was able to successfully rely on the defence of Intoxication to avoid a break and enter conviction. Here, the accused, when in an inebriated state, mistakenly believed that he was in his own house.

An accused can also rebut the presumption that he or she broke and entered with intent to commit an indicatable offence. The accused need only raise a reasonable doubt as to their guilt. This can be achieved by adducing evidence of an explanation that must be reasonably true. Where there is evidence to the contrary, that the accused did not have the requisite intent to commit an indicatable offence, the onus shifts on the Crown to prove the existence of the necessary intent beyond a reasonable doubt. A break and enter conviction can impact your life fundamentally. At Aitken Robertson our experienced lawyers are equipped to put forward a solid defence to refute a break and enter charge.

Contact the Aitken Robertson Experienced Criminal Defence Team for Assistance

If you have been charged with break and enter call our office to set up your free 30-minute consultation. Our team of criminal lawyers will work tirelessly to provide you with the most appropriate legal strategy for your defence.

Yasmine Al-Zaman

Yasmine’s patience, compassion and understanding allow her to work collaboratively and effectively with her clients. She appreciates the level of fear and confusion most people feel when confronted with the legal system. With that in mind, Yasmine puts her best foot forward to offer quality legal services.

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