Break and enter Lawyers in Canada

The Crown is the prosecutor. A person charged with an offence is presumed innocent until proven guilty, so the Crown is the side that has to prove the charge. That presumption is part of section 11(d) of the Canadian Charter of Rights and Freedoms.

Section 348 describes the offence in three ways. Paragraph (a) is breaking and entering a place with intent to commit an indictable offence in it. Paragraph (b) is breaking and entering a place and committing an indictable offence in it. Paragraph (c) is breaking out of a place after committing an indictable offence in it, or after entering it with intent to commit one. Which paragraph is alleged shapes what the Crown has to prove.

The word place has a definition in section 348. It means a dwelling-house, a building or structure or any part of one other than a dwelling-house, a railway vehicle, a vessel, an aircraft or a trailer, or a pen or enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes. Section 2 defines a dwelling-house as the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and the definition goes on to name two things it includes.

Section 321 defines break. It means to break any part, internal or external, or to open any thing that is used or intended to be used to close or to cover an internal or external opening. Section 350 adds rules on entry. A person enters as soon as any part of their body, or any part of an instrument they use, is within any thing that is being entered. A person is deemed to have broken and entered if they obtained entrance by a threat or an artifice or by collusion with a person within, or if they entered without lawful justification or excuse by a permanent or temporary opening.

Section 348 also has a presumption. Evidence that an accused broke and entered a place, or attempted to, is, in the absence of evidence to the contrary, proof that the accused did so with intent to commit an indictable offence in it. The words in the absence of evidence to the contrary matter: the presumption gives way to evidence that points the other way.

Section 348 sets two levels. If the offence is committed in relation to a dwelling-house, it is an indictable offence liable to imprisonment for life. If it is committed in relation to a place other than a dwelling-house, it is an indictable offence liable to imprisonment for a term not exceeding ten years, or an offence punishable on summary conviction. The section sets maximums and no minimum term.

For a summary conviction offence, section 787(1) sets the penalty where the law does not provide otherwise: a fine of not more than $5,000, or imprisonment of not more than two years less a day, or both.

A maximum is the ceiling the law allows. It does not say what sentence a court would give in any case, and this page does not predict one.

The elements above show where a charge can be tested. The Crown has to prove a break and an entry as the Code defines them, a place as the Code defines it, and the intent or the indictable offence that the paragraph requires. Whether the evidence proves each of those is a question for the court.

Section 350 refers to entry without lawful justification or excuse. A person who entered with lawful justification or excuse falls outside that wording. Questions about who was involved, and about what the evidence shows, are also for the court to decide at trial.

Charter rights apply from the start. Section 10 gives everyone on arrest or detention the right to be informed promptly of the reasons, and the right to retain and instruct counsel without delay and to be informed of that right. Section 8 protects the right to be secure against unreasonable search or seizure, which can matter when a home, a vehicle or a phone was searched.

Section 24(1) lets anyone whose Charter rights were infringed apply to a court for a remedy. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

Under section 515, a justice makes a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order should be made. Section 493.1 says that the person making the decision gives primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions that are appropriate. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause.

Break and enter appears in two places in section 515. For an offence under paragraph 348(1)(d), which is the dwelling-house paragraph, section 515 lists the charge among those where the accused shows cause why detention is not justified. For the same paragraph, before making a release order the justice considers whether to include conditions such as abstaining from possessing any instrument suitable for breaking into a place or motor vehicle. A lawyer can explain how these rules apply to a given charge.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. The Superior Court of Justice can try any indictable offence but generally tries only the most serious ones. The court's own description names murder, manslaughter, serious violent offences, firearm offences, robberies, home invasions, criminal organization offences and drug trafficking.

After a conviction on indictment, an appeal goes to the court of appeal. A person may appeal as of right on a question of law alone. An appeal on a question of fact, or of mixed law and fact, needs leave. So does an appeal against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.