After a drunken evening, you are away from home and decide to enter the home of a good friend of yours living in the neighborhood, while he is on vacation out of the country. You tell yourself that he will not have a problem with this since he always mentions leaving the back door unlocked and that you have known each other for many years. Could you still be charged with any offence?
What are the elements and penalties of the offence of break and enter?
Elements of the offence of break and enter
The definition of this offence is found in section 348(1) of the Criminal Code. A person commits such an offence in the following situations:
- He broke into a place with the intention of committing an indictable offence;
- She broke into a place and commits a criminal act;
- She broke and entered a place after intending to commit an indictable offence or after committing that act.
It is important to note that under section 348(2), unless there is evidence to the contrary, when a person enters or attempts to break and enter a place, there is a presumption that the person did so with intent to commit an indictable offence. In addition, a person who breaks out of a place will also be presumed to have done so after having committed or intended to commit an indictable offence, unless proven otherwise.
Definition of “place”
Section 348(3) of the Criminal Code defines the word “place”.
The following places are considered “place” for the purpose of breaking and entering:
- A dwelling house;
- A building or structure other than a dwelling house;
- A railway vehicle, ship, aircraft or trailer;
- An enclosure in which fur-bearing animals are kept for breeding or trading purposes.
According to case law, this definition may also be expanded to include other places. For example, a sales counter in a shopping mall will be considered a place. In the same way, a hotel room will meet the definition of dwelling house.
Definition of “introduction”
Section 350 of the Criminal Code states that a person is brought into a place as soon as a part of the person’s body or the instrument they use is inside that place.
When we talk about an instrument, it may be, for example, the case of a person who breaks a padlock locking a door. This could then be considered a break and enter.
However, force or instrument need not be used to conclude that a break and enter has been made. For example, if an individual enters a residence with the intent to commit theft, this will be considered a break and enter even if the door had been left ajar.
On the other hand, if you decide to enter a house, even if the door was locked, if you did not have the consent of the person living there you could be charged with breaking and entering.
An individual will be deemed to have broken and enter if he or she entered by threat, artifice or collusion with a person inside the premises. It will also be if it has entered through an opening in this place, without a legitimate reason for having done so.
Sentences
Section 348(1) provides two possible penalties for a person who commits an offence of breaking and entering with criminal intent. An individual convicted of such an offence could face:
- Life imprisonment if the offence was committed in connection with a dwelling-house;
- Imprisonment for up to 10 years or summary offence if the offence is committed in relation to a place other than a dwelling-house.
Aggravating circumstance
Under section 348.1, if the dwelling-house was occupied when the offence of breaking and entering was committed, this will be considered an aggravating circumstance. This implies that the penalty imposed will be more severe if the person who committed the offence knew or did not care that the dwelling house was occupied, or if he or she used violence or threats against a person or his property.
If you have been charged with a break and enter offence, do not hesitate to consult us so that our criminal lawyers can guide you in this situation.