Overview of Breaking and Entering
The charge of B&E – outlined in S. 348 of the Criminal Code of Canada – can be laid on anyone who:
- Breaks and enters a place with the intent to commit an indictable offence therein;
- Breaks and enters a place and does in fact commit an indictable offence therein; or
- Breaks out of a place after committing an indictable offence therein or after initially entering that place with intent to commit an indictable offence therein.
The offence of Breaking and Entering can also carry with it “lesser but included offences” such as Being Unlawfully In a Dwelling-House or Mischief. Similar defences are available to these charges as outlined below.
A Break and Enter is considered a serious (indictable) offence and punishment can be severe. If the break and enter is committed in relation to a dwelling house, the accused is liable to a maximum sentence of life imprisonment. As per Section 348.1, the fact that the dwelling house was occupied (and that the accused knew that it was occupied) at the time of the offence qualifies it as a home invasion. This becomes an aggravating factor when it comes to sentencing. If the offence involves a non-dwelling house (ie. a business), the maximum sentence is 10 years or 6 years imprisonment depending on the perceived severity of the alleged crime (and whether the Crown proceeds summarily or by indictment.
Although a common offence, the classic B&E charge is often laid in circumstances in which there a readily available defence. A finding of guilt requires that the accused not only break and enter a place, but that he/she does so in order to commit an indictable offence (ie. theft, robbery, etc) therein. Although the simple act of breaking into a place carries with it a presumption that, in the absence of evidence to the contrary, the accused had the requisite intent to commit an indictable offence therein, that presumption is rebuttable. If the accused can successfully present “evidence to the contrary” (ie. a believable explanation as to why they entered the place) the onus returns to the Crown to prove – beyond a reasonable doubt – that the accused had the necessary intent to commit an indictable offence therein. It is important to explore the above defences with a criminal defence lawyer. Please contact us immediately if you are charged with this or other offences so that we can begin the process of defending your rights as soon as possible.