Break and Enter (Offence)

From Criminal Law Notebook
Jump to navigation Jump to search


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 12 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.
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)
Preliminary Inquiry
s. 348(1)(d) [break into dwelling house] and
s. 98 [break in for firearm]
Indictable Offence(s) N/A OK Symbol.png OK Symbol.png (life max)
s. 348(1)(e) [break into non-dwelling house] Hybrid Offence(s) Yes OK Symbol.png (* only if Crown proceeds by Indictment) X Mark Symbol.png (under 14 years max)

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

Before the Crown can rely on provisions increasing the duration of the weapons prohibition order due to a prior weapons prohibition order notice under s. 727 must be given prior to plea.

Release
Offence(s) Appearance Notice
by Peace Officer

s. 497
Summons
by Judge or Justice

s. 508(1), 512(1), or 788
Release by
Peace Officer
on Undertaking

s. 498, 499, and 501
Release By
a Judge or Justice
on a Release Order

s. 515 to 519
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 348(1)(d) [break into dwelling house] and
s. 98 [break in for firearm]
X Mark Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png
s. 348(1)(e) [break into non-dwelling house] 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 firearm] , the accused can be given a judicial summons without arrest. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

When charged under s. 348(1)(e) [break into non-dwelling house] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.

Reverse Onus Bail

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)).
Fingerprints and Photos

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 criminal or regulatory prosecutions, 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.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required Serious Criminality
Offence
s. 36 IRPA
s. 90 [break in for firearm] X Mark Symbol.png OK Symbol.png OK Symbol.png X Mark Symbol.png OK Symbol.png (life max)
s. 348(1)(d) [break into dwelling house] OK Symbol.png OK Symbol.png OK Symbol.png* X Mark Symbol.png OK Symbol.png (life max)
s. 348(1)(e) [break into non-dwelling house] OK Symbol.png OK Symbol.png OK Symbol.png* X Mark Symbol.png OK Symbol.png (10 years max)

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 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


Note up: 348(1)

Aggravating circumstance — home invasion

348.1 If a person is convicted of an offence under section 98 [breaking and entering to steal firearm] or 98.1 [robbery to steal firearm], subsection 279(2) [forcible confinement] or section 343 [robbery – forms of offence], 346 [extortion] or 348 [break and enter] 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


Note up: 348.1

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) [breaking and entering to steal firearm] 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.
[annotation(s) added]

CCC


Note up: 98(1) and (4)

Draft Form of Charges

See also: Draft Form of Charges
Pre-ambles
"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR
"AND FURTHER at the same time and place aforesaid, he [or she]..."
Code Section Subject of Offence Draft Wording
"..., contrary to section 98 of the Criminal Code.
"..., contrary to section 348 of the Criminal Code.

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 [Pt. IX – Offences Against Rights of Property (s. 321 to 378)],

"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.
[annotation(s) added]

CCC


Note up: 321

"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 (SCC), per Dickson J
    R v Chanyi, 2019 ABCA 133 (CanLII), per curiam, at para 23 ("the concepts of both “actual breaking” and “constructive breaking” apply, the latter of which is defined as including entry by way of an accessible opening without lawful excuse or justification")
  2. R v Jewell (1974), OJ No 931 (Ont. C.A.), 1974 CanLII 1657 (ON CA), per Martin JA
  3. R v Fairbridge, 1984 AJ. NO 828 (Alta. C.A.)(*no CanLII links)
  4. R v House, 2012 NLCA 41 (CanLII), per Welsh JA, at paras 13 to 17

Entering

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

Entrance

350 For the purposes of sections 348 [break and enter] and 349 [unlawfully in a dwelling],

(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 by a permanent or temporary opening.

R.S., 1985, c. C-46, s. 350; 2018, c. 29, s. 36.
[annotation(s) added]

CCC


Note up: 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.[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, an "entrance" was defined as follows:

98
[omitted (1) and (2)]

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.

[omitted (4)]
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


Note up: 98(3)

Opening a Door is Breaking

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]

Not An Essential Element

The absence of lawful justification or excuse for entry is not an essential element for break and enter.[6]

  1. found to constitutional in R v TBK, [1998] CRR 328 (Ont.CA) (*no CanLII links)
  2. R v Singh (1987), 41 CCC (3d) 278 (Alta. C.A.), 1987 ABCA 261 (CanLII), per Hetherington JA
    see also R v K, 1998 CanLII 925 (ON C.A.), per curiam
  3. R v Farbridge, 1984 ABCA 301 (CanLII), (1984), 15 CCC (3d) 521, per Laycraft JA -- 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 CanLII links) , at para 12 citing R v Jewell (1975), 22 CCC (2d) 252, 1974 CanLII 1657 (ON CA), per Martin JA
    R v Corkum (1969), 7 C.R.N.S. 61(*no CanLII links) - window propped open by bottle was opened further by accused
  5. Toney, supra
  6. R v Singh, 1987 ABCA 261 (CanLII), per Hetherington JA, at para 64 ("[t]he absence of lawful justification or excuse for entry is not an essential element of the offence of breaking and entering. It is, however, essential to the triggering of the presumption of breaking in s 308(b)(ii) [now s 350(b)(ii)], and breaking is an essential element of the offence.")

Place

Section 348(3) defines "place" as:

348
[omitted (1) and (2)]

Definition of “place”

(3) For the purposes of this section and section 351 [possession of break-in instruments], “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.
[annotation(s) added]

CCC


Note up: 348(3)

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 RJF, 1994 CanLII 7611 (NS C.A.), per Roscoe JA
  2. R v Ausland, 2010 ABCA 17 (CanLII), per curiam
  3. R v Charron, 2005 BCCA 607 (CanLII), per Low JA

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
[omitted (1)]

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.

[omitted (3)]
R.S., 1985, c. C-46, s. 348; R.S., 1985, c. 27 (1st Supp.), s. 47; 1997, c. 18, s. 20.

CCC


Note up: 348(2)

Presumption Under s. 348(2)(a)

This provision under s. 348(2)(a) "merely establishes a prima facie case" while keeping the ultimate burden on the Crown to establish on the entirety of the evidence that there is proof beyond a reasonable doubt.[4]

The presumption is intended to reflect the reasonable inference that where a person is in a home they have no right to be in, it must have been for an improper purpose.[5]

It is not a presumption that places a burden on the accused to rebut it on a standard balance of probabilities. The ultimate burden remains at all times on the Crown.[6] Rather, it directs the court to infer criminal intent once the totality of the evidence is considered. The accused may argue against the inference by subtly pointing to a reasonable doubt on the evidence.[7] Where the crown's evidence does not lend to a reasonable doubt, such as where there is a prima fantasy case. There is a tactical burden upon the accused to present evidence or face a finding of guilt.[8]


"evidence to the contrary"

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.

Any evidence that "tends to negate the accused's intention to commit an indictable offence in a dwelling" is evidence to the contrary.[9] As is evidence that shows that the accused "had no intention of committing a crime in the premises".[10]

Evidence to the contrary needs only to give an explanation that is reasonably true.[11]

The fact that no offence was committed after entry is not "evidence to the contrary".[12]

Evidence to the contrary can come from either Crown or Defence witnesses.[13]

Where the accused has testified and has found not to be believed. That will not be evidence to the contrary.[14]

  1. R v Rodney, 2007 ONCA 314 (CanLII), per curiam, at para 5
    Regina v Wendel, [1967] 2 CCC 23 at 29 (BCCA), 1966 CanLII 533 (BC CA),, per Bird CJ
    R v Toney (1976), 17 N.S.R. (2d) 481, at para 16 (A.D.) (*no CanLII links)
    R v Austin, [1968] SCR 891, 1968 CanLII 94 (SCC), per Martland J, at p. 2
  2. R v Taylor, [1984] B.C.J. No. 176 (S.C.)(*no CanLII links)
  3. R v Schizgal, 2001 BCCA 238 (CanLII), per Braidwood JA
  4. R v Norbert, 2013 ABCA 11 (CanLII), at para 3 ("The presumption merely establishes a prima facie case. The burden of proof throughout is borne by the Crown…. The entirety of the evidence may raise a reasonable doubt as to [the accused’s] intention which is an essential ingredient of the crime")
  5. R v Holland, 2013 NBCA 69 (CanLII), per Richard JA, at para 11
    R v Fontaine, 2020 ABCA 193 (CanLII), per curiam, at para 4 ("This presumption reflects the reasonable inference that, when an accused breaks and enters into a victim’s home, where the accused has no right to be, he or she must have done so for an improper purpose")
  6. R v Chanyi, 2019 ABCA 133 (CanLII), at para 20, per curiam
    Fontaine, supra, at para 5
    R v Proudlock, 1978 CanLII 15 (SCC) , [1979] 1 SCR 525(complete citation pending)
  7. Fontaine, supra, at paras 5 to 6
    Chanyi, supra, at para 20
  8. Proudlock, supra at p. 549(complete citation pending)
    Fontaine, supra, at para 6
  9. R v WL, 2014 ONSC 1245(*no CanLII links) , at para 83
  10. WL, ibid., at para 83
    R v Atkinson, 2012 ONCA 380 (CanLII), [2012] OJ No 2520 (C.A.), per Watt JA, at paras 105, 106 and 108
  11. R v Proudlock, 1978 CanLII 15 (SCC), [1979] 1 SCR 525, per Estey J, at p. 2
  12. Rodney, supra, at para 6
  13. WL, supra, at para 83
  14. Fontaine, supra, at para 6

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) [break and enter and steals a firearm] or 348(1)(b) [break and enter – committing offence therein] and the evidence does not prove that offence but does prove an offence under, respectively, paragraph 98(1)(a) [break and enter with intent to steal a firearm] or 348(1)(a) [break and enter – intending to commit offence therein], 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; 2018, c. 21, s. 20.
[annotation(s) added]

CCC


Note up: 662(6)

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

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
Offence(s) Victim Notice
of Agreement
s. 606(4.1), (4.2)
Victim Notice
for Restitution
s. 738
Victim Notice
of Impact Statement
s. 722(2)
s. x [x]

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 firearm]
N/A life incarceration
s. 348(1)(e) [break into non-dwelling house] summary election 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 348(1)(e) [break into non-dwelling house] indictable election 10 years incarceration

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

Offences under s. 348(e) [break into non-dwelling house] are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).

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 [break in for firearm]
s. 348(1)(d) [break into dwelling house]
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)
[break into non-dwelling house]
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)
[break into non-dwelling house]
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) [break into non-dwelling house] , 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) [break into non-dwelling house] 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) [break into dwelling house] 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) [break into dwelling house] 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), per curiam, at para 19
  2. Martyn, ibid., at para 19
  3. R v Pike, 2014 CanLII 53038 (NL SCTD), per Handrigan J, at para 15
  4. R v Manning, 1992 ABCA 76 (CanLII), per McClung JA, 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 a 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), per Oland JA

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 CanLII links)
  2. R v Fry, [1981] OJ No 140 (C.A.)(*no CanLII links) -- 9 months concurrent
  3. R v Mann, 2010 ONCA 342 (CanLII), per MacPherson JA, at para 22
    R v Wright, 2006 CanLII 40975 (ONCA), per Blair JA, at para 23
  4. R v Zong (1986), 72 N.S.R. (2d) 432 (C.A.)(*no CanLII links)
    R v Adams, 2010 NSCA 42 (CanLII), per Bateman JA
  5. Adams, ibid., at paras 38 to 42
  6. R v Walbourne, 2012 CanLII 26671 (NL PC), [2012] N.J. No. 171 (P.C.), per Orr J
    R v Roul, 2014 CanLII 2887 (NL PC), per Porter J, 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(1)(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 the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (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(1) 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.

Record Suspensions and Pardons

Convictions under s. 348 [break and enter] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

Exception Where Intent to Commit Offences Against Children

Convictions under s. 348 (where the intended offence is listed in SCHEDULE 1 of the Criminal Records Act) are ineligible for record suspensions pursuant to s. 4 of the Criminal Records Act. An exception can be made under s. 4(3) for those offences where there was no relationship of “trust”, “authority” or “dependency”; no violence, threats or coercion; and age difference between victim and offender is less than 5 years.

History

See also: List of Criminal Code Amendments and Table of Concordance (Criminal Code)

See Also

References
Related Offences