Canadian Criminal Sentencing/Offences/Break and Enter
|Break and Enter|
|s. 348 of the Crim. Code|
|Election / Plea|
|Crown Election||Hybrid (non-dwelling)|
|Jurisdiction||Prov. Court |
SC Judge + PI (I)
SC Jury + PI (I) (536(2))
|Maximum||18 months jail or $5,000 fine (non-dwelling)|
|Maximum||10 years jail (non-dwelling)|
|Offence Elements |
Break and Enter[edit | edit source]
Legislation[edit | edit source]
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,
- (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 section 98 or 98.1, subsection 279(2) or section 343, 346 or 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.
Application[edit | edit source]
A first-time offender of good character who is charged with Break and Enter and where the offence is of a low-end nature (e.g. single incident, low value of property, property recovered), a suspended sentence may be appropriate. If, however, there are multiple incidents, a custodial sentence is the usual punishment.
- whether it was a private dwelling rather than a commercial building;
- extent of planning and sophistication
- the building was occupied at the time;
- the offender was aware or reckless to whether it was occupied;
- used violence or threats of violence to a person or property
- damage to property
The maximum penalty for Break and Enter on a dwelling house is life. The maximum penalty for Break and Enter on a premises other than a dwelling house is 10 year on indictable election and 6 months on summary election.
Certain provinces have set a benchmark for residential B&E's at 3 years.
- R. v. Davenport , 1 W.C.B. 176 (Ont.C.A.)
- Fry,  O.J. No. 140 (C.A.) -- 9 months concurrent
- R. v. McAllister, 2008 NSCA 103
Home Invasion[edit | edit source]
In Newfoundland, courts have suggested that a range of break and enter into dwellings is between 12 and 36 months.
- R. v. Walbourne,  N.J. No. 171 (P.C.), per Judge Orr
Ancillary Orders[edit | edit source]
- Discretionary DNA order (Secondary designated offence)
See Also[edit | edit source]
- Canadian Criminal Sentencing/Offences/Forceable Entry
- Canadian Criminal Sentencing/Offence/Unlawfully in a Dwelling