Break and Enter (Offence)

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Break and Enter
s. 98, 348 of the Crim. Code
Election / Plea
Crown Election Indictment (dwelling and 98)
Hybrid (non-dwelling)
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-Charge, or Judge (varies on charge)
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 18 months incarceration or $5,000 fine (non-dwelling)
Indictable Dispositions
Avail. Disp. Discharge (730)*

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)
Conditional Sentence (742.1)*

(* varies)
Minimum None
Maximum 10 years incarceration (non-dwelling)
Life (life)
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to break and enter are found in Part IX of the Criminal Code relating to "Offences Against Rights of Property".

Break and enter encompasses situations where the accused was or attempted to trespass on private 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.

Pleadings

Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 348(1)(d) [break into dwelling house] and
s. 98 [break in for firearm]
Indictable Offence(s) N/A Yes
s. 348(1)(e) [break into non-dwelling house] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 348(1)(d) [break into dwelling house] and 98 [break in for firearms] are straight indictable. There is a Defence election of Court under s. 536(2). Offences under s. 348(1)(e) [break into non-dwelling] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Section 727 notice prior to plea is required if Crown is relying upon increased duration on a subsequent s. 109 weapons prohibition order.

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 348(1)(d) and 98 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png OK Symbol.png OK Symbol.png
s. 348(1)(d) OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. s. 348(1)(d) [break into dwelling house] and 98 [break in for firearms], the accused cannot be released by police under s. 497 or 498 and so must be held by police when arrested. They must then be brought before a judge or justice under s. 503 and are only to be released by an order of a judge or justice under s. 515. A youth will be subject to a maximum penalty of 3 years under s. 42(15) of the YCJA and can be given an attendance notice without arrest under s. 496 or a summons and if arrested, can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. The youth can also be released by a justice under s. 515.

When charged under s. 348(1)(e) [break into non-dwelling], the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

A peace officer who charges a person under s. 348(1)(d) or (e) of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Designations
Offences under s. 348 are designated offences eligible for wiretap under s. 183.

Offences under s. 98 and 348 are "designated" offences under s. 752 for the purpose of dangerous offender applications.

Offences under s. 98 and 348 are designated "serious personal injury" offences under s. 752(a) only if it has a maximum penalty of 10 years incarceration or more and involves "use or attempted use of violence against another person" or "conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person".

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Breaking and entering with intent, committing offence or breaking out
348. (1) Every one who

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

is guilty

(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

...
R.S., 1985, c. C-46, s. 348; R.S., 1985, c. 27 (1st Supp.), s. 47; 1997, c. 18, s. 20.


CCC

Aggravating circumstance — home invasion
348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,

(a) knew that or was reckless as to whether the dwelling-house was occupied; and
(b) used violence or threats of violence to a person or property.

2002, c. 13, s. 15; 2008, c. 6, s. 34.


CCC

Breaking and entering to steal firearm
98. (1) Every person commits an offence who

(a) breaks and enters a place with intent to steal a firearm located in it;
(b) breaks and enters a place and steals a firearm located in it; or
(c) breaks out of a place after
(i) stealing a firearm located in it, or
(ii) entering the place with intent to steal a firearm located in it.

...
Punishment
(4) Every person who commits an offence under subsection (1) is guilty of an indictable offence and liable to imprisonment for life.
R.S., 1985, c. C-46, s. 98; R.S., 1985, c. 27 (1st Supp.), s. 13; 1991, c. 40, s. 11; 1995, c. 39, s. 139; 2008, c. 6, s. 9.


CCC

Proof of Offences

Proving breaking with intent under s. 348(1)(a) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit entered into the premises
  5. the culprit had no justification for entering the premises or permission to enter
  6. the culprit 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

Proving break and commit under s. 348(1)(b) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit entered into the premises
  5. the culprit had no justification for entering the premises or permission to enter
  6. the culprit 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

Proving break out under s. 348(1)(c) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was on the premises
  5. the culprit had no justification for being the premises or permission to be there
  6. the culprit intended to commit an indictable offence OR accused committed an indictable offence (theft, mischief, etc.) (presumed under s. 348(2)(a))
  7. location of place broken out of (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-out
  11. condition of place after the break-out
  12. amount of damage done
  13. ownership of goods taken
  14. continuity of goods

Interpretation of the Offence

Breaking

Section 321 defines "break":

321. In this Part,

“break” means
(a) to break any part, internal or external, or
(b) to open any thing that is used or intended to be used to close or to cover an internal or external opening;

...
R.S., 1985, c. C-46, s. 321; R.S., 1985, c. 27 (1st Supp.), s. 42.


CCC

"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.[1] However, simply entering into a structure through an open door does not on its own amount to "breaking". [2] This includes staying in a store until after closing time.[3] Likewise, entering through an unlocked but closed door after knocking does not amount to breaking.[4]

  1. R v Johnson, [1977] 2 SCR 646 1977 CanLII 229
  2. R v Jewell (1974), OJ No 931 (Ont. C.A.)(*no link)
  3. R v Fairbridge, 1984 AJ. NO 828 (Alta. C.A.)(*no link)
  4. R v House, 2012 NLCA 41 (CanLII) at paras 13-17

Entering

An entrance is defined in s.350: [1]

Entrance
350. For the purposes of sections 348 and 349,

(a) a person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and
(b) a person shall be deemed to have broken and entered if
(i) he obtained entrance by a threat or an artifice or by collusion with a person within, or
(ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening. [* found unconstitutional]

R.S., c. C-34, s. 308.
[annotation added]


CCC

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.[2]

The time of the break is relevant to determine whether such a "lawful justification or excuse" exists. [3]

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

s. 98
...
Entrance
(3) For the purposes of this section,

(a) a person enters as soon as any part of his or her body or any part of an instrument that he or she uses is within any thing that is being entered; and
(b) a person is deemed to have broken and entered if he or she
(i) obtained entrance by a threat or an artifice or by collusion with a person within, or
(ii) entered without lawful justification or excuse by a permanent or temporary opening.

...
R.S., 1985, c. C-46, s. 98; R.S., 1985, c. 27 (1st Supp.), s. 13; 1991, c. 40, s. 11; 1995, c. 39, s. 139; 2008, c. 6, s. 9.


CCC

The opening a door which is partially ajar amounts to "breaking".[4] Entry will occur even where it has been opened "enough to get your hand in" will be a "enter".[5]

  1. found to constitutional in R v T.B.K., [1998] CRR 328 (Ont.CA) (*no link)
  2. R v Singh (1987), 41 CCC (3d) 278 (Alta. C.A.) (*no link)
    see also R v K, 1998 CanLII 925 (ON C.A.)
  3. R v Farbridge, ]http://canlii.ca/t/2dgnd 1984 ABCA 301] (CanLII), (1984), 15 CCC (3d) 521 -- Accused hid in store lawfully until closing in order to steal. This was not considered breaking
  4. R v Toney (1976), 17 N.S.R. (2d) 481(*no link) at para 12 citing R v Jewell (1975), 22 CCC (2d) 252 (*no link)
    R v Corkum (1969), 7 C.R.N.S. 61(*no link) - window propped open by bottle was opened further by accused
  5. Toney, supra

Place

Section 348(3) defines place as:

348
...
Definition of “place”
(3) For the purposes of this section and section 351, “place” means

(a) a dwelling-house;
(b) a building or structure or any part thereof, other than a dwelling-house;
(c) a railway vehicle, a vessel, an aircraft or a trailer; or
(d) a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.

R.S., 1985, c. C-46, s. 348; R.S., 1985, c. 27 (1st Supp.), s. 47; 1997, c. 18, s. 20.


CCC

A place has been found, in certain circumstances, to include a fenced off area surrounding a structure.[1]

Under station 384 (3), "structure" does not extend to include "an unenclosed space", Such as a loss they can simply be entered by walking around the barrier. It must be something that can be "broken into and entered".[2]

The concierge area behind a locked gate as well as the desk and drawer within fall in the definition of a "place".[3]

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))

  1. R v R.J.F., 1994 CanLII 7611 (NS C.A.)
  2. R v Ausland, 2010 ABCA 17 (CanLII)
  3. R v Charron, 2005 BCCA 607 (CanLII)

Dwelling House

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.[1] Breaking and entering into a place is not a criminal offence without a sign of an offence while inside. [2] A person being chased into a house and damages the door is not enough to form intent to commit an indictable offence.[3]

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.

348.
...
Presumptions
(2) For the purposes of proceedings under this section, evidence that an accused

(a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or
(b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after
(i) committing an indictable offence therein, or
(ii) entering with intent to commit an indictable offence therein.

...
R.S., 1985, c. C-46, s. 348; R.S., 1985, c. 27 (1st Supp.), s. 47; 1997, c. 18, s. 20.


CCC

Any evidence that "tends to negate the accused's intention to commit an indictable offence in a dwelling" is evidence to the contrary.[4] As is evidence that shows that the accused "had no intention of committing a crime in the premises".[5]

Evidence to the contrary needs only to give an explanation that is reasonably true.[6]

The fact that no offence was committed after entry is not "evidence to the contrary".[7]

Evidence to the contrary can come from either Crown or Defence witnesses.[8]

To rebut the presumption of unlawful intent, the evidence to the contrary must tend to show that the intruder had no intention of committing a crime in the premises.

  1. R v Rodney, 2007 ONCA 314 (CanLII) at para 5
    Regina v Wendel, [1967] 2 CCC 23 at 29 (BCCA) (*no link)
    R v Toney (1976), 17 N.S.R. (2d) 481 at para 16 (A.D.) (*no link)
    R v Austin, [1968] SCR 891, 1968 CanLII 94 (SCC), at p. 2, per Martland J.
  2. R v Taylor, [1984] B.C.J. No. 176 (S.C.)(*no link)
  3. R v Schizgal, 2001 BCCA 238 (CanLII)
  4. R v WL, 2014 ONSC 1245 (CanLII), at para 83
  5. WL, ibid. at para 83
    R v Atkinson, 2012 ONCA 380 (CanLII), [2012] O.J. No. 2520 (C.A.), at paras 105, 106 and 108
  6. R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525, at p. 2
  7. Rodney, supra at para 6
  8. WL, supra at para 83

Doctrine of Recent Possession

See Recent Possession

Property

Proof of ownership and value of property can be proven using s. 657.1(1) and 491.2(1) without using the actual property as an exhibit.

Kienapple

An offence under s. 349(1) is a lesser included offence to an offence under s. 348(1)(b).[1]

662.
...
Conviction for break and enter with intent
(6) Where a count charges an offence under paragraph 98(1)(b) or 348(1)(b) and the evidence does not prove that offence but does prove an offence under, respectively, paragraph 98(1)(a) or 348(1)(a), the accused may be convicted of an offence under that latter paragraph.
R.S., 1985, c. C-46, s. 662; R.S., 1985, c. 27 (1st Supp.), s. 134; 2000, c. 2, s. 3; 2008, c. 6, s. 38.


CCC

  1. R v Liang, 2009 ABCA 2 (CanLII)

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
For serious personal injury offences or murder, s. 606(4.1) requires that after accepting a guilty plea, the judge must inquire whether "any of the victims had advised the prosecutor of their desire to be informed if such an agreement were entered into, and, if so, whether reasonable steps were taken to inform that victim of the agreement". Failing to take reasonable steps at guilty plea requires the prosecutor to "as soon as feasible, take reasonable steps to inform the victim of the agreement and the acceptance of the plea" (s. 606(4.3)).

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties

Offence(s) Crown
Election
Maximum Penalty
s. 348(1)(d) [break into dwelling house] or
s. 98 [break in for firearms]
N/A life in custody
s. 348(1)(e) [break into non-dwelling house] Summary Election six months jail and/or a $5,000 fine
s. 348(1)(e) [break into non-dwelling house] Indictable Election 10 years custody

Offences under s. 348(1)(d) [break into dwelling house] or s. 98 [break in for firearms] are straight indictable. The maximum penalty is life.

Offences under s. 348(e) [break into non-dwelling] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Dispositions

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 98, 348(1)(d) N/A X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png
s. 348(1)(e)
non-dwelling
any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 348(1)(e)
dwelling
any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png

For offences under s. 348(1)(e) [non-dwelling], when prosecuted by summary conviction, all dispositions are available. The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Offences under s. 348(1)(e) [non-dwelling] are ineligible for a conditional sentence order, when prosecuted by indictment, as the offence is enumerated as ineligible under s. 742.1(f).

If convicted under s. 98 or 348(1)(d) a discharge is not available under s. 730(1) as it is "an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life". Offences under s. 98 or 348(1)(d) are ineligible for a conditional sentence order under s. 742.1(c), when prosecuted by indictment, as the maximum period of incarceration is 14 years or life.

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

Principles

Seriousness
Break and Enter is not properly considered merely a property crime that is typically recoverable by way of insurance.[1]The offence is an "attack on the serenity and security" vested in the home regardless of whether there was any risk of violence. Vulnerable victims can suffer greatly from the offence.[2]

The offence has been referred to as the "most serious property offence in the Criminal Code"[3]

Rural buildings have a "special security concern".[4]

  1. R v Martyn, 2014 ABCA 151 (CanLII), at para 19
  2. Martyn, ibid. at para 19
  3. R v Pike, 2014 CanLII 53038 (NL SCTD), at para 15
  4. R v Manning, 1992 ABCA 76 (CanLII) at para 5

Factors

Aggravating

  • whether it was a private dwelling rather than a commercial building;
  • extent of planning and sophistication
  • the building was occupied at the time;
  • the offender was aware or reckless to whether it was occupied;
  • used violence or threats of violence to a person or property
  • damage to property

The maximum penalty for Break and Enter on a dwelling house is life. The maximum penalty for Break and Enter on a premises other than a dwelling house is 10 year on indictable election and 6 months on summary election.

Certain provinces have set a benchmark for residential B&E's at 3 years.[1]

  1. R v McAllister, 2008 NSCA 103 (CanLII)

Ranges

A first-time offender of good character who is charged with Break and Enter and where the offence is of a low-end nature (e.g. single incident, low value of property, property recovered), a suspended sentence may be appropriate.[1] If, however, there are multiple incidents, a custodial sentence is the usual punishment.[2]

In Ontario for home invasion offences, the low end of the range is 4 to 5 years while the high end of the range is 11 to 13 years.[3]

In Nova Scotia, a bench-mark of 3 years exists for break and enters.[4]The sentence may slide down to 2 years for those who do not otherwise have criminal records.[5]

Home Invasion
In Newfoundland, courts have suggested that a range of break and enter into dwellings is between 12 and 36 months.[6]

  1. R v Davenport [1977], 1 W.C.B. 176 (Ont.C.A.)(*no link)
  2. R v Fry, [1981] O.J. No. 140 (C.A.)(*no link) -- 9 months concurrent
  3. R v Mann, 2010 ONCA 342 (CanLII) at para 22
    R v Wright, 2006 CanLII 40975 (ON .CA) at para 23
  4. R v Zong (1986), 72 N.S.R. (2d) 432 (C.A.)(*no link)
    R v Adams, 2010 NSCA 42 (CanLII)
  5. Adams, ibid. at para 38 to 42
  6. R v Walbourne, 2012 CanLII 26671 (NL PC), [2012] N.J. No. 171 (P.C.), per Judge Orr<br. R v Roul, 2014 CanLII 2887 (NL PC) at para 24 ("absent exceptional circumstances, the range of sentence for break and entry into a dwelling house in this Province is from 12 to 36 months")

Ancillary Sentencing Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 348(1)(d), (e) and 98
Weapons Prohibition Orders s. 348
  • For offences under s. 348 that are enumerated under s. 109(b) or (c), the prohibition order is mandatory regardless of election. The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive"The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
  • On conviction under s. 348 where "violence against a person was used, threatened or attempted", and was prosecuted by indictment, punishable by "imprisonment for ten years or more", the weapons prohibition order is mandatory under s. 109(1)(a).
  • For offences under s. 348 where "the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance and, at the time of the offence, the person was prohibited" by court order, a mandatory weapons prohibition order under s. 109(1)(d) is required regardless of election.The order prohibits "the person from possessing any firearm, cross-bow, prohibited weapon, restricted weapon, prohibited device, ammunition, prohibited ammunition and explosive".
      • Duration (first offence): The Order prohibiting to "firearms" (other than a prohibited firearm or restricted firearm) and "crossbow, restricted weapon, ammunition and explosive substance" is for not less than 10 years starting at release from custody or at sentencing where custody is not ordered. The Order prohibiting "prohibited firearm, restricted firearm, prohibited weapon, prohibited device" is for life.
      • Duration (subsequent s. 109 offence): The duration must be life for all enumerated weapons and firearms. Notice of increased penalty under s. 727 required.
SOIRA Orders s. 348(1)(d), (e)
  • On conviction under s. 348(1)(d), as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is life as the offence has "maximum term of imprisonment for the offence is life" (s. 490.013(2)(c))).
      • There is an option for early termination under s. 490.015 after 20 years.

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

  • On conviction under s. 348(1)(e), as listed under s. 490.011(b), a SOIRA Order shall be ordered under s. 490.011(1)(b), on application of the prosecutor, "if the prosecutor establishes beyond a reasonable doubt that the person committed the offence with the intent to commit" any SOIRA designated offence listed under s. 490.011(a), (c), (c.1), or (d):
      • If there is a concurrent or prior conviction for a designated offence listed under s. 490.013(2)(a), (c), (c.1) or (d), the duration is life (s. 490.012(3))
      • Otherwise, the duration is 10 years where the offence has been "prosecuted summarily or if the maximum term of imprisonment for the offence is two or five years" (s. 490.013(2)(a))) or 20 years where the offence has a "maximum term of imprisonment for the offence is 10 or 14 years" (s. 490.013(2)(b)).
      • There is an option for early termination under s. 490.015 available after 5 years (if 10 year order), 10 years (if 20 year order), or 20 year (if life order).

Note that by function of s. 490.011(2) of the Code, SOIRA orders are not available when sentencing under the Youth Criminal Justice Act

Delayed Parole Order s. 98
  • Periods of imprisonment of 2 years or more for convictions under s. 98 are eligible for delayed parole order under s. 743.6(1) requiring the offender to serve at least "one half of the sentence or ten years, whichever is less", "where denunciation of the offence or the objective of specific or general deterrence so requires".

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(!) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments

See Also

References

Related Offences