Breaking and Entering Lawyers in Edmonton
What is Breaking and Entering?
Breaking and entering is a criminal offence classified as an “offence against rights of property” per section 348 of the Criminal Code of Canada (the “Code”). This charge most commonly arises where an accused break into a commercial or private residence to steal property. A more serious charge, known as “home invasion” arises where the accused knew or was reckless as to whether a home was occupied at the time of the offence, and they used violence or threats of violence against the person or property.
In Edmonton, the total number of break and enter incidents has steadily increased between 2016-2020. However, the target of the break and enters has shifted likely due to the COVID-19 pandemic. House break-ins in 2020 have decreased 23 percent, where office building break and enters have increased by over 75 percent. For these reasons, Edmonton Police Service remains on high alert.
Breaking and entering may be committed in one of three ways:
- Breaking and entering into a place with the intention of committing a crime once inside (for example, theft or assault);
- Breaking and entering into a place and actually committing a crime once inside; or
- Breaking out of a place after committing a crime inside (for example, a person who hides in a store until it closes, steals a number of items and then breaks out while the store is still closed).
Lesser variations of this offence include the following:
- Being Unlawfully in Dwelling;
- Mischief;
- Trespass at Night; and
- Forcible Entry.
The relevant provision for a break and enter charge in the Code is:
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.
Aggravating circumstance — home invasion
348.1 If a person is convicted of an offence under any of subsection 279(2) or sections 343, 346 and 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.
A “place” is defined as one of the following: a dwelling-house; a building or any part of a structure; a railway car; a boat; an airplane; a trailer; or a pen where animals are kept.
Although the offence refers to “breaking”, it is not a requirement that anything be physically broken. Opening a closed but unlocked door is sufficient to prove the “breaking” element of this charge.
Ultimately, a breaking and entering charge is a serious offence that is complex. It often engages Charter questions and requires careful review of the police investigation. For these reasons, having an experienced criminal defence lawyer on your side is critical.
Investigation of Breaking and Entering Charges in Edmonton
An investigation of a breaking and entering charge in Edmonton is typically initiated by the alleged victim. They contact the Edmonton Police Service and report it. The police will request a statement from the complainant and any witnesses, then they will launch an investigation.
Edmonton Police take property crimes very seriously and breaking and entering is no exception. The police will typically engage in a thorough investigation to find sufficient evidence to charge. This may include interviewing all witnesses, reviewing any video surveillance, seizing any evidence involved, photographing the scene, and obtaining receipts for damaged property.
After the police have gathered their evidence, they will arrest you if they believe you are the perpetrator. If you are not present at the scene, the police will track you down or issue a warrant for your arrest.
After you have been charged, police will provide a package with all the evidence they collected, known as the “disclosure package,” to the Crown Prosecutor. You will have the right to access this disclosure package to see the evidence against you. Once you retain one of our lawyers, we will assist you in obtaining the disclosure package, and we will review it with you to assess the strengths and weaknesses of the Crown’s case, as well as any legal defences that may be available to you.
Bail Process and Conditions for Breaking and Entering Charges in Edmonton
How do I get myself or a loved one out on bail for breaking and entering charges in Edmonton?
When charged with breaking and entering, you will likely be kept in custody and require a formal bail hearing to secure your release.
The bail hearing must be held within 24 hours, a period that starts from the moment of arrest or detention rather than the time when you are brought to the district office or courthouse.
In order to conduct a bail hearing, you will be transferred from the district office to the Arrest Processing Unit in the basement of the Edmonton Police Headquarters.
Edmonton Police Service Headquarters is located downtown at:
Edmonton Police Service Headquarters
9620 103a Ave NW
Edmonton, AB T5H 0H7
Tel: 780-423-4567
Loved ones are not able to contact you while you are detained. The police will not release any information to friends or family due to privacy laws. Your lawyer is the only person allowed to contact you. Once the police have verified your lawyer’s details, they will pass on information about your whereabouts, if requested.
Because of these difficulties while you are held in custody, it is best to appoint a competent defence lawyer as soon as possible to manage the legal processes and communicate with loved ones. After an arrest, the police must provide you with the opportunity to call a lawyer in private and, if that happens, stop questioning you.
Once you retain one of our experienced criminal defence lawyers, we will begin working to secure your release on bail.
We will immediately do the following:
- Call in to the Arrest Processing Unit in Edmonton and speak to you.
- Contact the prosecutor assigned to the bail hearing to start negotiating your release.
- Order and secure a copy of the police information package that details the allegations against you in advance of the bail hearing. This allows the lawyer to make meaningful representations to the court about why you should be released on bail.
- Conduct either an in-person or teleconference bail hearing to secure your release.
When you attend your bail hearing, the judge will consider:
- Is detention necessary to secure your attendance in court?
- Is detention necessary to protect the public from a substantial risk of re-offence?
- Is detention necessary in all the circumstances to maintain confidence in the administration of justice?
Due to the serious nature of break and enter allegations, the Crown Prosecutor is likely to request your detention until the charges are completed in the court system. Therefore, the court may deny your release. If you are released, you will likely face tight restrictions (see below).
Rest assured, we will work to not only secure your release but also to ensure the least restrictive set of bail conditions (including the minimum cash deposit).
In order for our lawyers to secure less stringent conditions, the judge will need to be satisfied that you will attend court as required, and that you pose no significant risk of harm to the public. This may sometimes be difficult in an assault case, but not impossible.
Our lawyers are often successful at persuading the prosecutor in charge of bail to let our clients out. If we can’t convince the Crown, we can conduct a formal bail hearing and work to convince the court. Even if you are ultimately detained, we can appeal that decision on very short notice through a bail review, which is conducted at the Court of King’s Bench of Alberta.
Where can I pay bail for breaking and entering charges in Edmonton?
If you or a loved one are charged with breaking and entering in Edmonton and granted bail, you may be required to provide a cash deposit to secure release. The cash deposit can be paid at any courthouse in Alberta. Even if you live in Calgary, you can pay bail there for someone detained in Edmonton.
Bail hearing offices in Edmonton are open from 8 a.m. until midnight, seven days a week.
The Edmonton Bail Hearing Office is located at:
Brownlee Building
10365 97 Street NW
Edmonton, AB T4J 3W7
Tel: 780-422-3699
You can also make a bail payment 24 hours a day, 7 days a week, at the Edmonton Remand Centre:
Edmonton Remand Centre
18415 127 Street NW
Edmonton, AB T6V 1B1
Tel: 780-638-5100
To pay your own bail, you can make a payment after your hearing, assuming you have sufficient funds with you to do so.
How do I change my release conditions for breaking and entering charges in Edmonton?
Release on bail with breaking and entering charges will almost always require a surety, cash, or no-cash deposit.
Furthermore, you can expect tight restrictions, including conditions to refrain from:
- Leaving your house (i.e. house arrest);
- Staying out beyond a certain time (i.e. curfew);
- Breaking any laws;
- Using drugs or alcohol;
- Possessing weapons;
- Possessing firearms;
- Visiting certain places; and/or
- Travelling.
The judge may also impose additional conditions such as:
- Residing where approved;
- Reporting to probation;
- Attending counselling; and/or
- Maintaining or seeking employment.
A variety of factors will be considered when determining your precise restrictions, including:
- Your criminal history;
- Your physical and mental condition;
- Your history of drug/alcohol usage;
- The nature of the alleged offence;
- The likelihood that you will flee;
- Whether you have stable employment;
- Whether you have stable living arrangements; and
- Whether you have ties to the community.
If you have already been released, at least for the short term, it is critical that you make arrangements to abide by your conditions until they can be changed. Breaching the terms of your release can result in further charges or a revocation of your bail, as well as a forfeiture of any cash paid to secure your release. It is important to take these conditions seriously.
Once the matter is in court, we can work with the Crown Prosecutor to alter your conditions. This includes either adding exceptions to some of the conditions or eliminating them altogether.
If your court date is far away and you cannot wait until then, we can arrange to have the matter dealt with sooner. Our first priority is always to stabilize your release conditions. That way, you will not feel pressured to plead guilty because of the restrictive terms of your release. Once the conditions are manageable and minimally intrusive to your daily routine, we can focus 100% of our attention on defending the case.
Penalties for Breaking and Entering Charges in Edmonton
Breaking and entering is treated as a hybrid offence in Canada. This means that the Crown can choose to prosecute you summarily or by way of indictment, indictment being the more severe.
Your punishment will vary depending on how the Crown chooses to proceed:
- Indictment: Up to two years’ less a day imprisonment and/or a $5,000 fine; or
- Summary: Up to ten years’ imprisonment.
Note, if you are charged with home invasion, the court will consider this an aggravating factor which can result in the Crown advocating for the maximum penalties available.
In addition to the immediate penalties resulting from a conviction for a breaking and entering charge, it can have wide-ranging negative consequences on your future. You may have difficulties securing employment in the area of your choice. The lifelong criminal record that results from a conviction can also hinder immigration, travel and child custody issues.
For these reasons, even if you intend on accepting responsibility for this type of offence, it is worthwhile to explore your options and consider all the potential penalties. Often, good representation can result in no criminal record. Furthermore, a community-based sentence may be obtained even where the Crown is seeking jail time.
Rest assured, our lawyers will work hard to defend you so that you are not saddled with the consequences that stem from a break and enter charge. In fact, we can canvass a range of sentencing options with the prosecutors that will either leave you with no criminal record or impose minimal restrictions on your liberty after sentencing. To learn more about potential non-criminal resolutions, please visit our resolutions page, or read our FAQ on resolutions and other sentencing options.
Defending Breaking and Entering Charges in Edmonton
What are the best defence to breaking and entering charges in Edmonton?
The defence that is best for you will depend on the circumstances of your offence.
Generally, some of the best defences to breaking and entering are:
- Factual Innocence: This is usually the strongest defence because the facts and the evidence do not support you being there or other basic elements of the offence. This could include:
- Identity: In some circumstances, you may be able to raise an identity defence. For example, authorities could have made a mistake in identifying you as the perpetrator. To effectively raise this defence, you may need corroborative evidence, such as an alibi to where you were at the time of the offence.
- Lack of Mens Rea: To be convicted of a break and enter charge, the Crown must show that you intended to commit an indictable offence, for example, to steal jewelry. If it can be shown that did not have the required intent, this will weaken the Crown’s case against you.
- Lawful Excuse: If you have a lawful excuse, such as being the owner of the place you are accused of breaking and entering, this can be used to show you should not be convicted.
- Violation of Constitutional Rights: The Canadian Charter of Rights and Freedoms (the “Charter”) sets out your rights before and after your arrest. If the police fail to abide by these rights, it can aid your defence.
While the Crown must prove the elements of the offence beyond a reasonable doubt, you may bear the responsibility of raising certain defences at trial. The burden of proof remains high for this kind of prosecution. This means that there are many successful defence strategies that our experienced defence lawyers can employ, depending on the circumstances of your case.
The availability and strength of any defence depends on the specific facts of your case. Our lawyers have significant experience assessing the availability and strengths of various potential defences in assault cases, as well as presenting any and all available defences to the court at trial. Even if you believe that you will be found guilty, it is important that you obtain a legal opinion about defences that may be available to you.
How can I help defend breaking and entering charges in Edmonton?
If you have been charged with breaking and entering, the following actions can help your lawyer build a strong defence:
- Take detailed notes about your version of events to provide to your lawyer;
- Have passengers write down their observations of what happened;
- Collect and maintain all documents and records about the event;
- Gather any photographic evidence that you may have; and
- Log any relevant texts, emails or phone calls.
As soon as you are released, start gathering any information that may be of use to your lawyer. What information is relevant will depend on the facts of your case. If you are uncertain what information may be relevant, you should contact one of our lawyers immediately to create a plan of action for gathering information.
To be truly proactive about the matter, consider doing the following:
- Secure proof of employment;
- Secure reference letters;
- Enroll in counselling (e.g. alcohol or drug rehabilitation);
- Secure a record of prescriptions; and
- Secure a record of any mental health conditions you suffer from.
These steps can be very helpful in building an effective defence (or convincing the prosecutor to drop the charges altogether).
What can a lawyer do to help me defend against breaking and entering charges in Edmonton?
As we start preparing your defence by examining police actions and the evidence against you, there are certain defence strategies that can be used to aid your cause.
Some of these include:
- Assembling documents, photos, texts, etc. that contradict the allegation and support your version of events;
- Identifying mistakes in the actions of the police, such as Charter breaches; and
- Uncovering administrative/systemic errors, such as “Jordan delay,” non-disclosure, lost or destroyed evidence, etc.
Even if the charges proceed and you are found guilty, a good lawyer can significantly reduce the severity of the consequences for you.
Further Reading
Below are a few notable cases dealing with various aspects of breaking and entering charges:
In R v Sharma, 2015 ABPC 199 the accused was charged with breaking and entering. At issue was whether the accused intended to commit an indictable offence. The accused testified that he had only climbed over the fence of the business because his girlfriend had thrown his keys over the fence, which held both his car keys and keys to his job as manager at McDonalds. Although he did climb the fence onto the property, he had no intent to commit an indictable offence. The court determined that the accused’s testimony was not credible based on several previous criminal charges related to dishonesty among other concerns. He was found guilty of breaking and entering.
In R v Brown, 2020 ABQB 166 the accused was also charged with breaking and entering. At issue was whether he could rely on the defence of non-insane automatism due to intoxication. On the night of the offences the accused had consumed multiple alcoholic drinks as well as medicinal mushrooms. He then broke into two different homes, both of which were occupied at the time. Although the criteria for a defence of automatism is strict, due to medical evidence and character witnesses, the court was satisfied that there was indicia of extreme intoxication due to automatism. The accused was acquitted of all charges.
What’s Next?
Most of the information above relates to simple breaking and entering charges, which can become increasingly complex and fact-specific depending on the circumstances of your case.
We have tried our best to provide a general outline of what you can expect if you find yourself in this situation, but this is just the tip of the iceberg.
To learn more about how we can help, please contact our team of impaired driving lawyers. We will conduct a thorough review of your situation and tailor a precise strategy that targets your successful defence.
