Breaking into a home, business, or other building to steal property is one of the most serious offences under Canada’s Criminal Code yet one of the most commonly committed offences. The Criminal Code outlines various break-and-enter offences, each carrying potentially life-altering consequences for those who have been convicted of the crime.
This blog will provide a high-level overview of break and enter offences, distinguish between a dwelling and non-dwelling in relation to such charges, and will highlight the importance of intent. It will also outline what is required of the Crown to obtain a conviction regarding a break and enter charge and will explore possible sentences that an accused may face.
Break and Enter (B&E) Charges
Breaking and entering charges (often referred to as “B&E”) are outlined under section 348(1) of the Criminal Code of Canada. It is the offence of breaking into a place with the intent to commit a criminal offence, such as theft. In other words, an accused may be guilty of break and enter even if they do not actually commit another criminal offence inside of the premises. Breaking and entering is an indictable criminal offence and is, therefore, publishable by up to life in prison. Section 348(3) provides that, for the purposes of break and enter charges, a “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.
It is also important to be aware that the use of the word “break” does not actually require the accused to use forced entry to get inside the premises.
Dwelling vs. Non-Dwelling
There are two types of break and enter offences, specifically break and enter into a dwelling and break and enter into a non-dwelling. A dwelling is generally considered to be a house, garage, or apartment. A non-dwelling may include a convenience store, a warehouse, or a trailer.
Break and Enter Conviction and Sentencing
In order to obtain a conviction for a break and enter charge, the Crown must demonstrate that the accused did not have permission or a lawful reason to be on the property in question. The Crown must also prove beyond a reasonable doubt that the accused broke into the property, and did so with the intention to commit an indictable offence, such as theft or robbery, whether or not the indictable offence occurred once on the property.
Common defences against break and enter charges include having a lawful excuse to be on the property or entering a property through an open door which you mistakenly believed belonged to someone else.
You can face serious consequences if you are convicted of a break and enter. The maximum sentence for a break and enter into a dwelling includes life imprisonment. The maximum sentence for a break and enter into a non-dwelling is 10 years in prison. However, the sentencing judge may consider various factors, such as the accused’s intent, previous criminal record, whether violence was used, and other circumstances of the crime, in order to determine an appropriate sentence.
Unlawfully in a Dwelling House
The offence of being unlawfully in a dwelling house is outlined under section 349 of the Criminal Code. This occurs when a person enters a dwelling-house without a lawful excuse with the intention to commit an indictable offence. If convicted, you may face up to 10 years in prison. However, a common defence to this charge is having a lawful reason to enter the dwelling house.
Home Invasions
While a home invasion is not explicitly provided for in the Criminal Code, courts treat these types of charges seriously. The Criminal Code states that if people are inside of the dwelling at the time of a break and enter, the sentencing court:
“…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.”
Given the seriousness and aggravating factors considered in this offence, it is important to work with a skilled criminal defence lawyer if you have been charged with a home invasion.
Key Takeaways for Individuals Facing Break and Enter Charges
Break and enter charges can have major consequences that can negatively impact your family and personal relationships, your employment, and personal freedom. Strong legal representation is required given the legal complexities involved in break and enter cases. A skilled criminal defence lawyer can carefully assess the charges against you and the circumstances of the alleged crime. They will also help you identify your options, craft a strategic defence and can highlight potential weaknesses in the Crown’s case against you. Your criminal defence lawyer will collect and present evidence that supports your defence and can help you explore options to potentially reduce charges or sentences. Of most importance, an experienced criminal defence lawyer will advocate for your rights and ensure your interests are protected throughout your case and will ensure a fair trial, if necessary.
Contact Hicks Adams Criminal Defence Lawyers in Toronto for Representation Against Break and Enter Charges
The experienced criminal defence lawyers at Hicks Adams in Toronto understand the legal nuances involved in break and enter and home invasion charges. Our skilled criminal defence team will review the circumstances of your case and will develop a strategic and tailored defence strategy. Whether you are defending against initial charges or are seeking to appeal a conviction, contact us by phone at 975-1700 (toll-free at 1-877-975-1700) or reach out to us online to learn how we can assist you.