Canadian Criminal Law/Offences/Break and Enter

Overview
The offence of break and enter encompasses situations where the accused was trespassing or attempted to trespass on private enclosed property with an intent to commit an indictable offence (i.e. a non-summary criminal offence). The most typical form of break and enter is a break into a commercial or private residence in order to steal property. The most serious form of break and enter is where the accused did the act knowing that there were people present and was prepared to use force against them in a robbery-like fashion. This is known as a "home invasion".

A less frequent form of break and enter is the entry into private property in order to confront a person found within intending to assault or threaten with violence. The parties normally know each other and arises from a dispute between them, sometimes domestic.

The evidence in most of these cases is circumstantial, and so identity is often a key point of litigation. In many cases the accused was found at some time later with stolen items in their possession for which the Crown can use to establish guilt by way of the doctrine of recent possession.

Proof of Offence
The Crown prosecutor should prove the following elements:

s. 348(1)(a) - breaks with intent

 * 1) identity of the accused as the culprit
 * 2) the time and date of the incident
 * 3) the jurisdiction of the incident
 * 4) the accused entered into the premises
 * 5) the accused had no justification for entering the premises or permission to enter
 * 6) the accused intended to commit an indictable offence (presumed under s. 348(2)(a))
 * 7) location of place broken into (evidence of access method)
 * 8) whether the place was a dwelling-house
 * 9) ownership of the place
 * 10) condition of place just prior to the break-in
 * 11) condition of place after the break-in
 * 12) amount of damage done

s. 348(1)(b) - breaks and commits

 * 1) identity of the accused as the culprit
 * 2) the time and date of the incident
 * 3) the jurisdiction of the incident
 * 4) the accused entered into the premises
 * 5) the accused had no justification for entering the premises or permission to enter
 * 6) the accused committed an indictable offence (theft, mischief, etc.)
 * 7) location of place broken into (evidence of access method)
 * 8) location of place of exit (optional)
 * 9) whether the place was a dwelling-house
 * 10) ownership of the place
 * 11) condition of place just prior to the break-in
 * 12) condition of place after the break-in
 * 13) amount of damage done
 * 14) ownership of goods taken
 * 15) continuity of goods

s. 348(1)(c) - breaks out
-identity of the accused as the culprit - the time and date of the incident - the jurisdiction of the incident - the accused was on the premises - the accused had no justification for being the premises or permission to be there - the accused intended to commit an indictable offence OR accused committed an indictable offence (theft, mischief, etc.) (presumed under s. 348(2)(a)) - location of place broken out of (evidence of access method) - whether the place was a dwelling-house - ownership of the place - condition of place just prior to the break-out - condition of place after the break-out - amount of damage done - ownership of goods taken - continuity of goods

Breaking
Section 321 defines "break":

"Breaking" can include an actual break as defined in s. 321 or it can be "constructive" breaking. "Constructive" breaking can be established by the accused simply walking through a doorway. However, simply entering into a structure through an open door does not on its own amount to "breaking". This includes staying in a store until after closing time. Likewise, entering through an unlocked but closed door after knocking does not amount to breaking.

Entering
An entrance is defined in s.350:

There is a statutory presumption under s.350(b)(ii) to require the accused to prove lawfulness of entry. However, this has been established as unconstitutional.

The time of the break is relevant to determine whether such a "lawful justification or excuse" exists.

When concerning break and enter under s. 98, entrance was defined as follows:

Place
Section 348(3) defines place as:

A place has been found, in certain circumstances, to include a fenced off area surrounding a structure.

The concierge area behind a locked gate as well as the desk and drawer within fall in the definition of a "place".

When concerning a charge under s. 98, "place" refers to "any building or structure — or part of one — and any motor vehicle, vessel, aircraft, railway vehicle, container or trailer."(98(2))

Dwelling House
"Dwelling house" is defined in section 2:

Detached building on private property does not usually amount to dwelling.

An incomplete building does not constitute a dwelling. However, an abandoned building however is one.

A driveway is not a dwelling house; it is a place where people drive and park their vehicles.

A motel room, camp, can be a dwelling.

Intent to Commit
To make out the charge under 348(1)(a), there must be an "intent" to commit an indictable offence and the intent must be present at the time of the entering. Breaking and entering into a place is not a criminal offence without a sign of an offence while inside. A person being chased into a house and damages the door is not enough to form intent to commit an indictable offence.

Section 348(2) provides that where there is certain evidence of the accused breaking in or out of a place, there is a rebuttable presumption of an intent to commit an indictable offence.

Doctrine of Recent Possession
See: Canadian_Criminal_Law/Doctrines_of_Liability

Misc issues

 * s. 491.2(1) -- photographic evidence
 * s. 657.1(1) -- Proof of ownership and value of property

Case Digests

 * R. v. Thompson, 2009 NSPC 51 -- acquitted for loss of continuity and rebutting presumption under 348(2)(a).