Break and Enter and Related Offences
Kenneth W. Golish, Criminal Defence

Break and Enter and Related Offences

Please note the disclaimer that nothing in this site constitutes legal advice.  If you would like to have a consultation, please contact me.   Because of some changes in the law, this article is different from its first iteration

Break and enter is one of the most serious crimes found in the Criminal Code of Canada.  If the premises are a dwelling, the crime is punishable by up to life imprisonmentEven when little damage occurs or the offender takes insubstantial property, the accused in these cases may be dealt with severelyOwners always feel violated by the intrusion into their private domainsBecause it is so serious, even first-time young offenders do not necessarily avoid a custodial sentenceIn any event, such offenders can expect a term of probation as a usual element of punishmentFrequently, offenders are young, even too young to be prosecuted in CanadaResidences are too often easy targets for this crimeOffenders may operate singly or in groups with varying degrees of planning and sophisticationCash, jewels, alcohol, electronic equipment and cigarettes comprise the most common type of property stolen from homes and small businessesBreak and enter artists are usually not very neat and often cause damage to an entry point, such as a door or window and, in an indiscriminate way, to interior property as well.


The crime can get more serious when persons are actually present in a residence--whether anticipated or not--and an attack on an occupant or a confrontation occursWhat is sometimes called a ‘home invasion,' when perpetrators know someone is present and an assault occurs on the premises, will be treated with greater severityFor all this trouble, offenders might find the profit in the enterprise not very substantial as often what is stolen, if anything, is not worth stealing or is sold on the street for well below its value.


Elements:   The modern crime of break and enter derives from the common law offence of burglaryTraditionally, burglary could only be committed after dark and an actual breaking was necessaryToday, these requirements no longer existUnder s. 348, two basic elements comprise the crime of break and enter: These two elements are a:

·         An unauthorized entry of premises or property, and

·         An intention to commit an indictable offence or the actual commission of an indictable offence.

Break and entry:   The time of day is not material to the offence and under s321, a breaking is not necessaryIt is sufficient if an unlocked door or window is merely openedHowever, even this kind of breaking may not be necessary because under s. 350, a person is deemed to have broken and entered if he or she gained entry by a threat or artifice or by collusion with a person inside or otherwise entered through any opening without lawful justification or excuseEssentially, the section says that if a person is trespassing, that is a break(Arguably, the offence of break and enter cannot be committed without there being a trespass, rendering the definition in s. 321, for the purposes of the offences under 348(a) and (b), unnecessary.)


Finally, it is not necessary for a person to enter the premises at allA person may be guilty when any part of his or her body enters the premisesHe or she may also be guilty simply by participating in a break and entry by another person, for instance by acting as a look-out


Premises defined:   The premises or place may include any building or attachment, a dwelling-house, a railway vehicle, boat, trailer, or pen or enclosure for fur-bearing animals kept for breeding or commercial purposesAs a different punishment applies to breaking into a dwelling, defining a dwelling is important, but may sometimes be problematicFor instance, is a vacant house a dwelling? Does a dwelling include a store used as dwelling, but not known to be so used? Perhaps the answer is yes to the first and no to the secondGarages attached to dwellings are considered part of the dwelling, but unattached garages are notA trailer is included as a place, but if used for living purposes, however temporary or small, the trailer will be considered a dwelling.


Commission:   Section 348 actually defines three different offences, the first two are most commonly charged and the two are together referred to as ‘break and enter.' and occur when a person either:


(a) breaks and enters a place with the intent to commit an indictable offence therein, or

(b) breaks and enters a place and commits an indictable offence therein.


An indictable offence will be any crime that may be prosecuted by indictment and includes all hybrid offences(See Classification of Offences)Theft under or theft over, wilful damage, any kind of assault are the typical types of offences committed or intendedAll of these offences may be prosecuted by indictment and are therefore included, but any other indictable offence capable of being committed in a building would be included as wellMost commonly, an indictable offence is actually committed and perpetrators are charged under s. 348(b)If no other indictable offence is committed, but the person intended to commit one, then it is the offence break and enter with intent under s. 348(a). A mere trespass however is not a break and enter, even though a trespass might constitute a break


This of course begs the question, how to prove a person's intentThe Criminal Code of Canada deals with this issue by providing that evidence of a break and enter is evidence of an intent to commit the requisite offenceIn criminal matters, it is not constitutionally permissible to put the onus of proof on the accusedThis situation is however said to be something other than a true reverse onus and is permissibleThe accused, who is in the best position to establish his or her own intent, can lead evidence to show that there was no intention to commit an indictable offence.  In order to convict him or her, the court will still have to be satisfied beyond a reasonable doubt the accused entry was with the requisite intentThus if a man is found in a dwelling, but says he only went in there because he was cold and drunk--although drunkenness itself is not a defence to this charge--that is a valid defence, provided the judge or jury finds the explanation could reasonably be true.


What is or isn't a break and enter?   The typical shoplifting incident would not constitute a break and enter because the trespass element of the offence is not presentHowever, if a person is caught shoplifting and given a trespass notice not to come back, a second shoplifting incident at that location would probably constitute the offence because both elements would be presentAnother example of what isn't a break and enter is when a car on a street is broken into, the car not being within the definition of 'place.'  If however the car is in a private garage, it could be an offence because the place broken is the building, not the car


Convictions and Penalties:   Offenders are often charged with both break and enter and the underlying offence, for example theftHowever, because the offences are so closely associated, something like double jeopardy would occur if the offender were convicted of bothThus what is known as the rule in Kienapple, prohibits a conviction for both, although both may be chargedIf a break and enter is in relation to a dwelling, the maximum penalty is imprisonment for lifeFor other premises, this is a dual procedure offence, punishable by up to two years less a day by summary conviction, or 10 years by indictmentFor first time offenders, custodial sentences or dispositions are frequently not imposedRepeat offenders normally do not receive such lenient treatment.


Other like offences:   Two other like offences must be mentionedThe first is unlawfully in a dwelling-house under s. 349, a dual procedure offence, punishable by up to two years less a day by summary conviction, or 10 years by indictmentFor this offence, a trespass is not necessary, but the place must be a dwellingThe offender must at some point decide to commit an indictable offenceIt might happen when a guest in a home, for example, steals something or assaults someoneAlthough this crime does not require the commission of an indictable offence, as a practical matter, the offence will only be charged if an indictable offence, such as assault or theft, has actually been committedHowever, because it carries a lesser penalty than breaking and entering a dwelling-house, sometimes when a charge under s. 348(a) of break and enter with intent is laid, the accused may end up pleading guilty or being found guilty of this lesser included offenceThis might happen when difficulties of proving the greater offence occur or when a prosecutor exercises their discretion in a more lenient mannerOne can see that the drafters must have had this in mind when they chose not to require the actual commission of an offence


The second offence is what is called breaking outAs mentioned above three offences are created and this is the third offence under s348It occurs when a person:


(c) breaks out of a place after


(i) committing an indictable offence therein, or

(ii) entering the place with intent to commit an indictable offence therein.


Breaking out does not require a trespass, but it does require a breaking as defined by s321However, as stated by that section, merely opening a door or window is sufficient to constitute a breakingThis offence is rarely charged although the circumstances of a break and enter usually give rise to the commission of a break outAlthough the rule in Kienapple applies, allowing both offences to be charged, as a matter of practice, this just doesn't happenOnly break and enter and perhaps the underlying indictable offence are chargedAn example of a breaking out only crime would be where a person enters a store, hides, steals something and breaks out after the store is closed


Related offences:   Two other offences must be mentionedThese are possession of break-in instruments, sometimes called housebreaking tools and the offence of prowl at nightUnder s. 351(1):


Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe knowing that the instrument has been used or is intended to be used for that purpose,


(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or

(b) is guilty of an offence punishable on summary conviction.


An instrument does not have to be manufactured for the purpose of breaking into a place, but can be anything capable of being used for such a purposeCommonly it will be a screwdriverThe key to the offence is the circumstances under which it is committedThus a situation involving a person using a screwdriver at home will not give rise to the inference referred toIf however an individual is walking in a neighbourhood, perhaps not his own, with a screwdriver in his or her back pocket, the inference will ariseThe offence is thus an effective law enforcement tool because it may be used to arrest somebody before committing a break-in, or after a break-in has occurred, when the police do not have enough evidence to convict on the break-inThe other offence worth mentioning is prowl at night under s. 177:


Every person who, without lawful excuse, loiters or prowls at night on the property of another person near a dwelling-house situated on that property is guilty of an offence punishable on summary conviction.


Section 177 makes trespassing an offence, but only at night and only near a dwellingOf course, unlike s. 351(1), its purpose goes beyond the crimes of theft, wilful damage and break and enterIt can however serve an objective not unlike that served by s. 351(1).


Caution: This article has highlighted some of the issues that will arise in a property offence charges.  It must however be read with caution, as this is a complex area.  If you are charged with such an offence, it is especially important to hire or at least consult with a criminal lawyer in the jurisdiction where the charges arise.


Please note the disclaimer that nothing in this site constitutes legal advice.  If you would like to have a consultation, please contact me.


Please note the disclaimer that nothing in this site constitutes legal advice.  If you would like to have a consultation, please contact me.