Break and Enter Laws in Canada

Breaking and entering or as commonly referred to as a “B&E” offence, is criminalized under sections 348(1)-(3) of the Criminal Code.

In Canada, breaking and entering involves either:

• entry into a “place” with the intent to commit an indictable offence;
• entry into a “place” where one commits an indictable offence; or
• breaking out of a “place” after having committed an indictable offence or after having entered that place with the intent to commit an indictable offence.

Breaking and entering is not to be confused with other offences such as Trespassing at night. The key element in determining whether someone committed a break and enter is a finding that the individual intended to, or indeed did, commit an indictable offence amidst their entry into a “place”. However, it is important to note that entering a place without this intent or actual conduct could still be caught under the Criminal Code as a different offence (such as possession of stolen property).

According to the Criminal Code, a “place” can include:

• a dwelling-house;
• a building or structure or any part thereof, other than a dwelling-house;
• a railway vehicle, a vessel, an aircraft or a trailer; or
• a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.

Depending on what type of “place” the accused broke into, the Crown can opt to proceed with a break and enter charge as an indictable offence or a summary offence (s. 348(1)(d)-(e)).

Examples

Some examples of breaking and entering might include:

• Going into someone’s home without their permission and stealing items from the premises.
• Going into someone’s home without their permission with the intent to steal items regardless of whether or not items were actually taken off of the premises.
• Going into a place of business without permission and destroying property.
• Going into someone’s home to confront a person using violence such as assault or the threat of violence.
• Remaining in a store after it closes to steal items and then breaking out of the premises upon leaving.

Defences

A strong defence to a charge of break and enter will depend on the circumstances of one’s case.

However, some common defences against a charge of break and enter include:

• Rebutting the presumption of an intent to commit an indictable offence
• Consent
• Intoxication
• Applicable Charter defences

Punishment

The punishment for committing a break and enter can vary quite drastically. While, at the high end, a prospective sentence, should the Crown proceed by indictment, could carry with it a penalty of life imprisonment (see: section 348(1)(d) of the Criminal Code), sentences and the way the Crown might opt to proceed (indictment or summarily) depends largely on the type of “place” that was broken and entered into.

For example:

• As per section 348(1)(d) of the Criminal Code, if the type of place that was broken and entered into was in relation to a dwelling-house, the offence is automatically deemed to proceed as an indictable one and this can carry, as aforementioned, a maximum sentence of life imprisonment.
• As per section 348(1)(e) of the Criminal Code, if the offence is committed in relation to a place other than a dwelling-house, the Crown can decide to proceed with an indictable offence. However, in this instance, the maximum sentence cannot exceed 10 years imprisonment.
• Also outlined in section 348(1)(e) is that in cases where the place of entry was a place other than a dwelling-house, the Crown can also opt to proceed summarily. This carries with it a maximum penalty of 6 months imprisonment or a $5000 fine.

Overview of the Offence

According to section 348(1) of the Criminal Code:

However, Parliament has legislated that without proof to the contrary, a presumption that the accused at least intended to commit an indictable offence exists.

According to the Court in R Fontaine, 2020 ABCA, 193 (CanLii) “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.” Therefore, the burden rests on the defendant to show to the court, that he or she did not intend to commit an indictable offence upon breaking and entering into a place.

In R v Rodney, 2007 ONCA 314 (CanLii), the Court noted that the commission of a break and enter triggers the presumption. The fact that the intruder committed no offence once inside is not evidence to the contrary. Furthermore, evidence in the Crown’s case — or adduced by the defence — may rebut this presumption (R v Bus, 2020 BCCA, 278 (CanLii)).

For the Crown to secure a conviction for breaking and entering, the actus reus and the mens rea of the offence must be proven beyond a reasonable doubt.

The Guilty Act (Actus Reus)

The actus reus or standard of action which must be proven in order to satisfy a finding of guilt for breaking and entering can be broken up into three distinct parts based on the different circumstances Parliament has legislated for.

These include:

1. breaking and entering with intent to commit an indictable offence;
2. breaking and entering and committing an indictable offence; and
3. breaking out after having committed an indictable offence or entering with the intent to do so.

The physical acts of both “breaking” and “entering” into a place must be made out to prove that either offence one or offence two (listed above) occurred.

The Criminal Code, under section 321 defines “breaking” as:

As a general rule, breaking into a place requires the application of some force, however slight, to gain entry. Opening a door involves enough force to count as a breaking.

In defining “entrance” the Criminal Code notes under section 350 that:

Therefore, to enter a place means to go into it. The required act for the first offence (breaking and entering with intent) is to break into and enter a place. As established in R v Vankoughnett, 2008 BCCA 261 (CanLii), serving as a driver or lookout, without actual entrance into a place, may be sufficient to be guilty of the offence.

The required actions for the second offence is to break and enter a place and commit an indictable offence in that place. The required act for the third offence is to break out of a place after either committing an indictable offence in the place or entering the place. Note that in the case R v MacEwen, 1946 CanLii 575, it was established that breaking and entering is not of itself an offence unless it is accompanied by an actual offence or done with an intention to commit an offence.

Should the Crown prove that the above acts occurred in accordance with the specific break and enter offence the accused is suspected of committing, the Crown must also go onto establish that the accused meets the following mens rea requisites.

The Guilty Mind (Mens Rea)

For the first offence (breaking and entering with intent to commit an indictable offence), the only specified mental element that the Crown must prove is that the accused intended to commit an indictable offence in the “place” of entry.

As per Austin v The Queen, 1968 CanLii 94 (SCC), the Crown must prove this beyond a reasonable doubt. Furthermore, the court in  R v McDowell, 1976 ALTASCAD 205 (CanLii) affirmed that the intention to commit an indictable offence must be present at the time of entry.

The offence is one of specific intent meaning that the Crown must show that in breaking and entering, the accused intended to commit an indictable offence. This intent may be proven through circumstantial evidence or the statutory presumption discussed here and as outlined in the case R v Khan, 1982 CanLii 2225 (ONCA).

Furthermore, the Crown need not prove an intention to commit a specific indictable offence if none is alleged (R v Wendler, 1986 CanLii 3276 (SKCA)). However, as per McNeil v R, 1931 CanLII 719 (NSCA), there must be proof that the accused intended to commit some indictable offence inside the premises.

For the second offence (breaking and entering and committing an indictable offence), there is no specified mental element. In the case R v Quin, 1988 CanLii 21 (SCC),  the Supreme Court held that the mental element required is that for the indictable offence alleged to have been committed on the premises (theft, mischief, assault etc.).

For the third offence (breaking out after entry with intent to commit an indictable offence or having had committed an indictable offence), the only specified mental element is again that for the alleged indictable offence.

Burden of Proof

The crime of breaking and entering is a unique charge in our Criminal Code because it is one of the very few crimes for which the burden largely rests on the defendant to prove that the elements of a crime did not exist (normally the criminal justice system relies on the standard that the accused is presumed innocent, and the state is tasked with proving the existence of elements of the particular crime in question).

The presumption in section 348(2) has survived constitutional scrutiny in provincial supreme courts. In  R v Nagy, 1988 CanLii 7138 (ONCA), the Ontario Court of Appeal held that the reverse onus in section 307(2) (now section 348(2)) is inconsistent with the presumption of innocence in section 11(d) of the Charter, but is a demonstrably justified reasonable limit under section 1 of the Charter.

The British Columbia Court of Appeal came to the same conclusion in both R v Slavens, 1991 CanLii 298 (BCCA) and R v Singh, 2005 BCCA 591 (CanLii). Nevertheless, it is important to note that this burden does not require the defendant to provide a full-fledged defence or excuse; it only requires that the defendant raise a reasonable doubt about whether or not he or she intended to commit an indictable offence.

Break and Enter Defences

How to Beat a Break and Enter Charge

The availability and strength of any defence depend entirely on the specific facts of one’s case. However, the following are some common defences that may be used when fighting a break and enter charge:

Rebutting the Presumption of an Intent to Commit an Indictable Offence

Perhaps the most obvious defence given that the burden to extinguish a claim of break and enter rests with the defendant is to do exactly that; disprove the presumption that there existed an intention to commit an indictable offence.

The accused may raise reasonable doubt by giving evidence of an explanation that may reasonably be true, and it will be sufficient unless the accused is disbelieved. However, as noted in R v Proudlock, 1978 CanLii 15 (SCC) evidence that is disbelieved is not evidence to the contrary and leaves a prima facie (sufficient to establish a fact or raise a presumption) case.

“Evidence to the contrary” may consist of various factors: the testimony of the accused (R v Jackson, 1978 CanLii 3148 (ABQB)), evidence of intoxication (see both: R v Thomas, 1991 CanLii 1318 (BCCA) and “Intoxication” heading below), or the circumstances surrounding the allegation (R v Greggor, 1990 CanLii 1679 (BCCA)).

Note, however, that there is no actual presumption to disprove if an indictable offence actually occurred.

Consent

In certain situations, there may exist the availability of the defence of “consent”. Simply put, this defence may be invoked where the accused was provided consent to be on the premises by the rightful owner (Lemieux v The Queen, 1967 CanLii 9 (SCC); and R v Gallant, 1953 CarswellNB 4, 108 CCC 179) However, even if consent has been established, alternative charges (such as theft, mischief, assault, etc.) can still be pursued by the Crown if an indictable offence actually occurred on the premises.

Intoxication

In rebutting the presumption that the accused intended on committing an indictable offence amidst a break and enter, the accused may (if factually available to them) apply the defence of intoxication as evidence to the contrary. The defence of intoxication can be used to demonstrate the lack of intent on behalf of the accused. The courts have suggested that for example, the intent to get drunk, cannot be confused with the intent to steal. (See both: R v Thomas, 1991 CanLii 1318 (BCCA); and R v Campbell, 1974 CCC 2d 320 (Ont CA)).

Applicable Charter Defences

The Canadian Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights, either deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s.24(2) of the Charter.

Break and Enter Punishments

As discussed previously in this article, sentences for breaking and entering can range quite drastically. The court in imposing a sentence will consider an array of factors and the sentence will largely depend on the circumstances of the case (i.e., what type of “place” the accused broke and entered into, what type of indictable offence occurred or was intended to occur on the premises, whether weapons or tools were used, the time of day, etc.).

In instances relating to the break and enter of a dwelling-house, section 348.1 of the Criminal Code requires the court to consider whether the dwelling-house was occupied at the time of the offence.

If the dwelling-house was occupied, this is meant to be an aggravating factor at sentencing and the court may consider sentences higher than the normative range because the degree of invasion is increased. Furthermore, section 348.1 deems violence and threats used to intimidate the person within the dwelling as an aggravating factor at sentencing.

Additionally, it is important to consider the special circumstances surrounding a break and enter to steal a firearm. This is criminalized under a separate section (sections 98(1)-(4)) from the conventional break and enter sections (348(1)-(3)) and here it outlines that if the purpose of the break and enter was to steal a firearm, the offence is considered an indictable one and the punishment for such can be up to life imprisonment.

Maximum Terms of Imprisonment for Break and Enter Offences in Canada:

• Entered a private dwelling – house – Indictable
  • Life – section 348(1)(d)
• Intended to or did steal a firearm – Indictable
  • Life – section 98(4)
• Entered a place other than a dwelling – house – Indictable
  • 10 years – section 348(1)(e)
• Entered a place other than a dwelling – house – Summary
  • 6 months – section 348(1)(e)

Besides terms of imprisonment the court is also allowed to impose:

• Fines including Victim Fine Surcharge (sections 348(1)(e) and 737)
• Firearms Prohibition (sections 109/110)
• Bans of communication with the complainant(s), witnesses, etc. (sections 1(3)(a.1), 732.1(3)(h), 742.3(2)(a.3), 742.3(2)(f), and 743.21)
• Probation (section 731(1))
• Order samples to be provided for and saved in the DNA Databank (section 487.051)
• In cases where the offender committed a designated sexual offence, to be registered as a sex offender (section 490.012(1))
• Restitution (paying the victim for lost, stolen or damaged items) (section 738(1))
• Forfeiture of any property intended to be used or actually used in the commission of the break and enter (section 491.1)

Frequently Asked Questions

What is the penalty for break and enter in Canada?

The penalty for breaking and entering in Canada is far-ranging. It is entirely dependent on the particular facts of one’s case. There is no minimum penalty for break and enter offences in Canada, however, the maximum penalty can be up to life imprisonment if the individual found guilty of breaking and entering, entered a dwelling-house (private home), or where the individual found guilty of breaking and entering broke into, and entered a place to steal a firearm.

Where an individual is found to have broken and entered any place besides a dwelling-house, depending on whether the Crown decides to proceed with the offence as an indictable one or summarily, will inform the maximum possible penalty. In the instance the Crown opts to proceed by indictment, the maximum sentence is 10 years imprisonment and where the Crown opts for a summary conviction, the maximum penalty is 6 months imprisonment.

You can read more about punishment here.

How do you prove break and enter?

Breaking and entering is broken up into three separate parts under the Criminal Code:

1. breaking and entering with intent to commit an indictable offence;
2. breaking and entering and committing an indictable offence; and
3. breaking out after having committed an indictable offence or entering with the intent to do so.

These are each proven a bit differently.

What the Crown Must Prove for Break and Enter Charges in Canada:

• Breaking and Entering with Intent
  • The Crown must prove that the accused “broke” into the premises (opening an unlocked door can be considered “breaking” within the Criminal Code definition of “break”).
  • The Crown must prove that the accused entered the premises without permission.
• Breaking and Entering and Committing
  • The Crown must prove that the accused “broke” into the premises.
  • The Crown must prove that the accused entered the premises without permission.
  • The Crown must prove the requisite elements of the indictable offence that occurred during the break and enter (e.g., theft, mischief, assault, etc.).
• Breaking Out
  • The Crown must prove that the accused entered the premises with the intent to commit an indictable offence.
  • The Crown must prove that the accused “broke” out of the premises after either having the intent to commit an indictable offence or having actually committed the indictable offence.

Is breaking and entering a violent crime in Canada?

Breaking and entering itself is not considered a violent crime, but what we refer to as the “predicate offence” or the offence which occurred alongside the break and enter, can be a violent crime. For example, where one breaks and enters, intends to, or does in fact commit assault, this is a violent offence.

What is the legal meaning of “break and enter”?

• Section 321 of the Criminal Code establishes that “breaking” means to “(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”.
• Section 350 of the Criminal Code establishes that “entering” happens when (a) a person has any part of his body or any part of an instrument that he uses 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.

Published Decisions

R v Herrington, 2017 ABCA 61 (CanLii)

The offender pled guilty to three counts of breaking and entering and possession of a breaking and entering instrument after he forced his way into an apartment building with a crowbar and unsuccessfully attempted to pry open the communal mailboxes. The accused had an extensive criminal record and was in breach of his probation at the time of the crime. He was sentenced to 15 months imprisonment in an Alberta court. The Alberta Court of Appeal upheld this sentence.

You can read the full case here.

R v Perrin, 2012 NSCA 85 (CanLii)

The offender was 21 years old and was serving a conditional sentence for a fraud-related offence. He broke into a cottage that was closed for the season and stole items such as speakers and copper piping. He pled guilty at an early opportunity and returned all of the stolen items to the police. The offender was in breach of his conditional sentence and therefore was sentenced to a term of 30 days in prison.

You can read the full case here.

R v O’Neil, 2011 CanLii 75711 (NLPC)

The offender pled guilty to the offence of break and enter after he broke into a hotel bar after hours. He stole over $4000 from the bar’s cash register and then fled the scene. The judge, in imposing a 12-month conditional sentence of imprisonment considered that the offender was only 24 years old, had a criminal record, was taking steps to initiate his own rehabilitation and considered the sum of money stolen and the seriousness of breaking and entering.

You can read the full case here