Break and Enter
Break and enter is the criminal offence, set out in section 348 of the Criminal Code, of breaking and entering a place with intent to commit an indictable offence, or actually committing an indictable offence inside. The penalty depends on the type of premises. Break and enter into a dwelling-house carries a maximum sentence of life imprisonment. For other places, the maximum is 10 years.
Mass Tsang's criminal lawyers handle break and enter matters across the GTA. For more, see our blog post on B&E charges in Ontario.
Elements
The Crown must prove four elements: (1) breaking — opening or otherwise overcoming a barrier (even an unlocked door, by operating the handle, counts as a break for these purposes); (2) entering — any part of the body or instrument entering the space; (3) of a place — any structure or part of one; and (4) the intent or the commission of an indictable offence inside (theft, assault, mischief, drug offences, and many others).
Section 348(2) presumption
Section 348(2) provides a useful Crown tool: evidence that the accused broke and entered a place is, in the absence of evidence to the contrary, proof that they did so with intent to commit an indictable offence. The presumption shifts the evidentiary burden to the accused on intent — meaning the accused must point to some evidence that raises a doubt about the unlawful purpose. The reverse can also apply where the accused broke out of a place.
Defences
Common defences include: lack of identification (the accused was not the person who entered); colour of right or lawful authority (the accused was permitted to be there); no intent to commit an indictable offence inside (a person who enters an unsecured space looking for shelter, for example, with no theft or other criminal purpose); intoxication, in some narrow circumstances; and Charter challenges to the search or arrest that produced the evidence.
Sentencing
Break and enter into a dwelling is treated very seriously. Sentences are typically custodial, and prior records can push terms into the federal range. Where occupants were home — a "home invasion" scenario — sentences increase sharply, particularly if violence or weapons were involved. Property-only commercial break and enters of similar profile can sometimes resolve with shorter sentences or, in narrower circumstances, conditional sentences.
Related glossary terms
