Break And Enter Lawyer in Canada

What Break and Enter covers in Canadian criminal law

What the Crown must prove

The Crown carries the burden of proving every element beyond a reasonable doubt. A reasonable doubt on any one of them means an acquittal.

• The accused broke and entered a place, as those terms are defined in the Criminal Code
• The place was a dwelling house or another place, which affects classification
• The accused intended to commit an indictable offence inside, or committed one
• The entry was without lawful authority or the consent of the occupier
• Identity of the accused and the date and jurisdiction of the alleged offence

Penalties and consequences on conviction

• A maximum of life imprisonment where the place entered is a dwelling house
• A maximum of ten years on indictment where the place is not a dwelling house
• A DNA order in defined circumstances
• Restitution for property damage and loss
• A criminal record that significantly restricts employment involving access to homes or premises

Common defences

• The accused had lawful authority or the consent of the occupier to enter
• No intent to commit an indictable offence inside at the time of entry
• Identification, often turning on forensic evidence, video or the reliability of a witness
• Colour of right, where the accused believed they had a right to be in the place
• The presumption in section 348(2) is rebutted by evidence of an innocent explanation
• Charter challenges to the search warrant or the seizure of forensic evidence

Break and enter lawyer: frequently asked questions

Does breaking require force or damage?

No. The legal definition includes opening anything that is used to close a place, so turning a handle or pushing open an unlocked door can be a break. Damage is evidence of entry and affects restitution and sentence, but it is not required for the offence.

What if I entered but took nothing?

The offence can still be complete. Section 348 is made out by breaking and entering with the intent to commit an indictable offence inside. Whether anything was taken goes to whether the second branch applies and to sentence, not to whether the offence occurred.

Why is entering a house treated more seriously?

Because of the violation of the home and the risk of confrontation with occupants. Breaking and entering a dwelling house carries a maximum of life imprisonment, while entering a business or other place carries a much lower maximum and can be prosecuted summarily.