By: William Jaksa Criminal Litigation March 3, 2022

PENALTIES FOR BREAKING AND ENTERING CONVICTIONS

WHAT IS BREAKING AND ENTERING?

In simple terms, break and enter involves breaking into a place where you have no permission to be with the intent to commit a criminal offence, such as theft. Break and enter is referred to as burglary in many parts of the United States but has not been indexed as such in the Canadian Criminal Code for many years. You can be found guilty of breaking and entering even if there is no specific “breakage.” Even if you entered a place through or reach through an open window or an unlocked door,the offence is committed as soon as the seal of that closure is opened or crossed. The entering occurs as soon as you move through that opening and do not have permission to be there. Walking through an open door into a house or business could be considered break & enter.

You can be charged with break and enter even if you do not commit a crime while inside the place. If the police have reasonable grounds to believe you entered with the intention to commit an indictable offence, you could be charged even if you did not go through with it. The classic example is breaking into a bank and not being able to open the safe. It is considered break and enter and not an attempted break and enter. The crime is committed as soon as the person breaks the seal or threshold and enters and not what they did while inside the place.

TYPES OF BREAK AND ENTER CHARGES

According to the criminal code, there are two distinct types of break and enter offences that consider the location of the crime. The first category includes B&E committed in relation to a dwelling such as a home, often referred to as aresidential break & enter. The second involves a place other than a dwelling like a business, vehicle or other location, or a non-residential break & enter.

Section 348 of the Criminal Code defines Break and Enter as: (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.

This section of the Code also defines what is considered a “place,” stating it 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.

BREAK AND ENTER SENTENCES

The Courts have long found that breaking into dwellings is a serious offence. Judges often refer to the violation that people feel when their home, the place they lay their head to sleep, is broken into. Its not the financial harm from the lost or broken property that lasts. It is the psychological and emotion harm that lingers from the loss of a sense of security from the invasion into their private place. In recognition of this most Judges impose substantial sentences, especially if there are previous break and enter convictions.

There are no mandatory minimum sentences for B&E convictions, but there is a maximum sentence of Life for break and enter committed in relation to a dwelling house. The maximum sentence for a conviction for B&E into a non-dwelling is for imprisonment for a term not exceeding ten years, but will usually be much lower if the Crown Attorney elects to proceed by way of summary conviction. Rarely are sentences in the range of ten years ever imposed for non-dwelling break and enter convictions.

Almost all sentencing dispositions are available for break and enter convictions, for both dwellings and non-dwellings, and for with summary convictions or by indictment. The only exception is that a Discharge (s.730) is not an available sentence when the Crown is proceeding by Indictment. Defence counsel when attempting to seeking lower sentences will often present evidence that the accused is remorseful for their actions and takes responsibility for the offence committed, and will attempt to demonstrate the the court any other mitigating reasons to justify a sentence more appropriate for their client’s circumstances.

CHARGES OF HOME INVASION – ROBBERY

As mentioned, the criminal offence of break and enter is taken very seriously, especially in the case of a dwelling house, and this is because of the belief that a person’s home should be a place of safety. It is an aggravating feature if there are people in the home when the break and enter occurs, and that there is evidence that an accused person entered the place with the intent to commit an indictable offence. The Courts have comment on the emotional and psychological harm that is caused to people when strangers break into their homes, and they are trapped.

The sentencing ranges dramatically increase when a home break and enter escalates into a home invasion, technically considered a Robbery under the criminal code. The accused decided and planned to enter a place for when people are expected to be found in the dwelling. Also, that the accused armed themselves before entering and confines or uses any violence or threats against the people in the dwelling. The sentencing ranges in Ontario can be as low as as imprisonment for a term of four years of custody to as much as seven to nine years if a firearm is used. Home invasion robberies are treated as the accused committed an indictable offence.

WHAT IS UNLAWFULLY IN A DWELLING HOUSE?

Often when dealing with B&E charges a criminal defence lawyer will try and determine if the offence of being Unlawfully in a Dwelling, section 349 of the criminal code, is the more appropriate charge. For this charge a person, without lawful excuse, enters or is in a dwelling-house with the intent to commit an indictable offence. The charge of being Unlawfully in a Dwelling is very similar to Break and Enter expect that the “breaking” element is not required.

Also, of note, is the presumption that there is no lawful excuse. The Crown nor police need to prove that there was no lawful excuse nor that there was any evidence that an accused broke in. They just need to prove that the accused was there and is enough to prove the offence was committed. Any evidence to the contrary can be provided by the accused person through their lawyer or at trial.

These charges proceed by summary conviction and have a much lower sentencing range than a break and enter conviction.

DEFENDING AGAINST A BREAKING AND ENTERING CHARGE

Charges of Break & Enter, Being Unlawfully in a Dwelling-House or Home Invasion Robbery are all serious criminal offences that can have severe penalties depending on the allegations. The concerns for criminal lawyers are that break and enter charges in relation to a dwelling are considered committing an indictable offence and carry longer jail sentences. It is essential to have an experienced criminal defence lawyer to help defend your case and achieve the best possible outcome.

William Jaksa has successfully defended clients against charges of break and enter in cases in Toronto for over fifteen years. He has experience navigating the complex charges and can help negotiate and get the best result possible for your situation. For a consultation on your case, contact William Jaksa today.