QUICK TAKEAWAY
Break and Enter with Intent: Breaking into a home or business to steal property is one of the most commonly committed property offences in the country. It is also one of the serious crimes in the Criminal Code. It doesn't matter if you walked through an unlocked door or that did not actually take anything, the offence of break and enter with intent as outlined in s.348 (1) of the Code is an indictable offence. If you are caught breaking into a property such as a business, you could face up to 10 years in custody. If you enter a home without reason with intent to commit an indictable offence, the consequences are much worse and you could be imprisoned for life.
Table of Contents:
Break and Enter
Break and enter is defined as entering a residence, business or other property without permission to commit a crime. A forced entry is not required. Even if you enter the building through an open window or an unlocked door, if you did not have permission to be there you could face charges even if no theft, injury to occupants or property damage occurs.
Research shows residential break-ins occur every 90 seconds in Canada, and the majority happen during daylight hours. It is a common crime that has been increasing in frequency over the years, especially during the pandemic.
According to the Criminal Code you can be found guilty of the offence of breaking and entering with intent if you:
- break and enter a place with intent to commit an indictable offence;
- break and enter a place and commit an indictable offence; or
- break out of a place after committing an indictable offence;
The property can be a dwelling-house; a building or structure or any part thereof; a railway vehicle, a vessel, an aircraft or a trailer; or a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.
Although there is no specific charge of home invasion in the Code, the court treats those who enter a home and cause bodily harm to the occupants harshly. Even if the residents are unharmed, breaking into a home while there is someone there is seen as an aggravating factor upon sentencing.
What the Crown Must Prove
To win a conviction for break and enter, the Crown prosecutorLawyers who prosecutes charges on behalf of the Crown must demonstrate that you are the person responsible and that you did not have permission or a lawful reason to be on the property. Although there is the presumption that the break-in occurred with the intent to commit a crime, the Crown must show beyond a reasonable doubtThe standard that must be exceeded to find someone guilty that you not only broke in, but did so to commit an indictable offenceIndictable offences are more-serious criminal offences such as robbery or theft. Your intention is what is important when prosecuting a charge of break and enter, not whether you actually stole something or committed any other crime.
There may be a reason you entered the home without the occupant’s permission. For example, you could have walked into the dwelling through an open door in the mistaken belief that it belonged to someone else.
Treated as an Indictable Offence
Break and enter with intent is a serious crime and is always prosecuted an indictable offence. This means that the penalty upon conviction is more severe than with a summary conviction.
Penalties for Break and Enter
The penalty you face will depend on the type of property you broke into. Under s.348 of the Code, if the offence is committed in a dwelling-house, you could face imprisonment for life. If the offence is committed in a place other than a dwelling-house you could face a prison term of up to 10 years.
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Orkin Katherine E
Shellie Addley Barrister and Solicitor.
Keli D. Mersereau Criminal Law Office
Glossary of Legal Terms
Crown prosecutor
Lawyers who act for the federal, provincial and territorial governments and prosecute people accused of crimes on behalf of the Crown.
Indictable offence
Indictable offences are the most serious offences under the Criminal Code and they come with more serious punishments, up to a maximum penalty of life in prison.
Reasonable doubt
The Supreme Court of Canada has said that reasonable doubt “falls much closer to absolute certainty than to proof on a balance of probabilities” and “that something less than absolute certainty is required, and that something more than probable guilt is required."
