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Breaking and entering (B&E) is a criminal offence involving the unlawful entry into a property with the intent to commit an indictable offence. This can occur in private residences, commercial establishments, and various other locations. It’s essential to note that breaking and entering doesn't require physical breaking; merely entering through an unlocked door or window can suffice. Even partial entry, such as an arm or leg, can be considered breaking and entering.
The offence encompasses more than just theft or property damage. A person who enters a property unlawfully with criminal intent can be found guilty, regardless of whether any items were stolen or any property was damaged. For instance, accessing a home through an open window with the intent to commit a crime qualifies as breaking and entering.
At Pyzer Criminal Lawyers, we are highly experienced in defending against B&E charges throughout Ontario. Our team understands the complexities of these cases and is dedicated to pursuing a favourable outcome for our clients. If you have been accused of breaking and entering, choosing an experienced defence lawyer is crucial for protecting your future.
Breaking and entering is a serious crime with severe penalties, potentially leading to a maximum sentence of life imprisonment. Particularly grave instances, such as "home invasions," fall under a more severe category of breaking and entering. These charges carry significant consequences, underscoring the importance of effective legal representation.
Break and enter (B&E) is defined as unlawfully entering premises with the intent to commit a criminal offence, such as theft, assault, or other offence inside. Importantly, an accused can be guilty of breaking and entering even if no other offence is committed, provided there was intent. The term "breaking" does not imply that property must be damaged. Simply opening a door or window can constitute "breaking" if it facilitates unauthorized entry.
Section 348 of the Criminal Code of Canada outlines the legal framework for Breaking and Entering:
Additionally, the offence of being unlawfully in a dwelling, codified in Section 349, is closely related to breaking and entering. It involves being in a dwelling without lawful excuse and with the intent to commit an offence. This is a summary conviction offence and generally attracts lower sentences compared to breaking and entering.
Break and enter (B&E) offences are categorized based on the type of property involved. There are two main types:
The penalties for these offences can differ significantly. B&E into a dwelling generally attracts more severe penalties compared to non-residential B&E incidents, reflecting the higher level of intrusion and potential danger to inhabitants.
A home invasion occurs when a break and enter takes place while people are inside the dwelling. This offence is treated much more seriously by the Crown compared to a simple break and enter, leading to significantly longer prison sentences.
Section 348.1 of the Criminal Code of Canada stipulates that if a person is convicted of certain offences related to a dwelling-house, the presence of occupants at the time is considered an aggravating circumstance. This is particularly severe if the offender knew or was reckless about the occupancy and used violence or threats of violence.
Section 351(1) of the Criminal Code of Canada criminalizes the possession of any instrument suitable for breaking into places, motor vehicles, vaults, or safes, unless there is a lawful excuse. This provision places the burden of proof on the accused, requiring them to demonstrate a valid reason for possessing such tools.
The primary purpose of Section 351(1) is to prevent individuals from carrying tools that could be used to commit crimes, thereby deterring burglars, car thieves, and other criminals. The law recognizes the potential harm these tools pose to public safety, as they facilitate break-ins and thefts. By criminalizing the possession of these instruments, the provision aims to protect the public and reduce the incidence of property crimes.
Section 351(2) of the Criminal Code of Canada criminalizes disguising oneself with the intent to commit an indictable offence. This provision makes it illegal to mask, colour, or otherwise disguise one's face with the purpose of committing a serious crime, which is defined as an offence carrying a maximum sentence of more than two years in prison.
The offence is particularly serious because it involves premeditation and intent to commit a crime. Successful identification of suspects is crucial for law enforcement, and disguising oneself significantly impedes this process. The law covers all forms of disguises, including masks, hoods, face paint, or any other means used to conceal identity.
Break and enter charges are typically divided into two parts.
The first part involves determining whether the accused unlawfully entered a place without invitation. It's important to note that no physical "break-in" is necessary; simply entering without permission with the intent to commit an indictable offence is sufficient for a charge, even if no property is stolen or damaged.
The second part involves assessing whether the accused intended to commit additional indictable offences, such as assault, robbery, or theft. If there is no intent to commit an indictable offence but the entry is still unlawful, other charges, like trespassing at night, may apply. The law presumes the intent to commit a serious crime unless there is evidence to the contrary.
For a conviction, the Crown must prove several elements beyond a reasonable doubt:
If charged under section 348(1)(d) of the Criminal Code, the Crown must also prove the premises was a dwelling house.
Facing break and enter charges can be daunting, but understanding the potential defences available can provide clarity and hope. Various legal strategies can be employed to challenge these charges, each focusing on different aspects of the case.
A key element of a break and enter charge is the intent to commit an indictable offence. If the defence can demonstrate that the accused did not have this intent upon entering the premises, the charge may be reduced or dismissed. This defence focuses on disproving the prosecution's claim that the accused intended to commit a crime inside.
If the accused had permission to enter the premises, they cannot be found guilty of unlawful entry. This defence involves providing evidence such as a key, an invitation, or testimony from the property owner or other witnesses to show that the accused had lawful access to the property.
In some cases, the accused may have been wrongly identified as the perpetrator. The defence can present alibis, witness testimonies, or surveillance footage to establish that someone else committed the offence. This defence aims to create reasonable doubt about the identity of the person who committed the break and enter.
If the accused was under the influence of drugs or alcohol, or suffering from a mental health issue, they may have been incapable of forming the necessary intent to commit an indictable offence. This defence requires evidence of the accused's impaired state at the time of the incident.
If the accused mistakenly believed they had a right to enter the premises, this defence can be used. For example, if the accused thought the property belonged to a friend or family member who had given them permission to enter, this mistake of fact can be a valid defence against the charge.
Each of these defences challenges the prosecution's case by presenting credible evidence and testimony, aiming to create reasonable doubt regarding the accused's guilt.
Bail is a legal mechanism that allows an accused person to be released from custody while awaiting trial. Securing bail is crucial as it enables the accused to prepare for their defence outside of detention, maintain employment, and support their family. The process involves a court hearing where a judge or justice of the peace decides whether to grant bail and under what conditions.
When deciding on bail, the court considers several factors. The nature and severity of the offence play a significant role, especially if the break and enter charge involved violence or a home invasion. The accused’s criminal history is also scrutinized, including any past compliance with bail conditions. Another critical factor is the risk of flight, which assesses the likelihood that the accused will appear for future court dates and not flee the jurisdiction. Public safety is paramount, as the court must ensure that releasing the accused does not pose a threat to the community. Lastly, the accused’s ties to the community, such as family, employment, and residence stability, are evaluated to determine their likelihood of complying with bail conditions.
If bail is granted, the court may impose specific conditions to ensure compliance and public safety. These conditions often include reporting to a bail supervisor, which requires the accused to check in regularly with a designated official. A curfew may be imposed, restricting the hours during which the accused can leave their home. No contact orders might be put in place to prevent the accused from contacting certain individuals, such as victims or witnesses. Additionally, the accused may be required to abstain from drugs and alcohol to mitigate any risk of reoffending.
A defence lawyer plays a pivotal role in securing bail by presenting a strong case for the accused’s release. This involves highlighting positive factors such as the accused’s good character and stable background. The lawyer also negotiates reasonable bail conditions with the court and provides evidence of the accused’s ties to the community, such as letters from employers, family members, and community leaders. These efforts aim to convince the court that the accused will comply with bail conditions and appear for future court dates.
Having experienced legal representation is critical in navigating the bail process. A skilled defence lawyer can effectively argue for the accused’s release, ensuring that their rights are protected and that they have a high chance of securing bail. By understanding the factors involved and employing effective strategies, a defence lawyer can significantly enhance the likelihood of obtaining bail, allowing the accused to prepare for their defence in the best possible circumstances.
Sentences for break and enter offences vary significantly based on the nature of the crime and the circumstances surrounding it. Generally, break and enter crimes committed when no one is present are less severe. For non-residential properties, if the Crown proceeds by indictment, the maximum penalty is ten years imprisonment, while summary convictions can result in sentences of up to two years less a day.
When the offence involves a dwelling, the severity increases. The maximum sentence for break and enter into a dwelling house is life imprisonment. Factors such as property damage, the scale of loss, and whether individuals were present can aggravate the sentence.
Home invasions, where the complainants are present, weapons are used, or violence occurs, are treated with even greater severity. Convictions for home invasions can lead to sentences of up to life imprisonment, reflecting the heightened danger and harm involved. These cases underscore the critical nature of the offence and the need for a skilled defence to navigate the complexities of the legal system.
If you are convicted of breaking and entering, or any related offences such as possession of breaking instruments or disguising oneself with intent to commit a crime, you could face serious consequences, including significant jail time. The complexities and severe penalties associated with these charges make it essential to seek legal representation.
Our team has extensive experience defending individuals accused of these crimes in Toronto, Brampton, Newmarket, and throughout Ontario, ensuring that your rights are protected and that you receive the most suitable defence possible.
The act of entering an unlocked door after knocking does not constitute breaking under breaking and entering. A lawyer would have to review the specific facts of your case to determine if the Crown could prove that the accused intended to commit an indictable offence.
While Canada does not have felony offences, breaking and entering is an indictable offence or a hybrid offence under the Criminal Code in Canada depending on how the Crown elects to proceed in the case.
In Canada, the minimum sentence for breaking and entering, particularly for offences classified under Section 348(1)(d) of the Criminal Code, is a suspended sentence with probation. This section classifies break and enter involving a dwelling-house as an offence punishable by up to life in prison, meaning there is no option for a discharge or a non-criminal record disposition upon a finding of guilt. Even first-time offenders may face jail time if found guilty of breaking and entering a dwelling. The severity of the sentence reflects the serious nature of the offence and its impact on public safety and security.
