In simple terms, a person is accused of this crime when he/she breaks and enters a place and commits an indictable offence, or even enters with the intent to commit an indictable offence. This means that even if someone does not commit any offence on the property, they can still be charged with Breaking and Entering on the allegation that they had the intention of committing another criminal offence such a theft.
Unless there is evidence to suggest otherwise, pursuant to s. 348(2), it is presumed that breaking and entering is done with the intention of committing an indictable offence.
Break and Enter is made an offence under section 348 of the Criminal Code. It’s important to note the difference in punishments for break a enter in a dwelling house and break and enter into a place other than a dwelling.
If the crime involves a residential house, the accused will be facing an indictable offence and can be liable to imprisonment for life. Whereas if the crime is committed on any other premises, the accused may either be found guilty of an indictable offence and sentenced to a maximum of ten years, or they can be found guilty of an offence punishable on summary conviction.
If you face indictment, you will have the liberty to choose your mode of trial. You can be tried by a judge alone, or by a jury and a judge. A Criminal Defense Lawyer will help you choose your best course of action.
There are a number of defences that might be raised depending on the circumstances and available evidence. In some cases, it can be argued that the Crown has not proven identification, which is an important element of the offence.
The Crown may also attempt to prove their case on forensic evidence, such as DNA and Fingerprints. The defence can challenge the admissibility of such evidence and even if admitted, can weaken it’s impact by cross-examining the expert and/or producing a defence expert to counter the opinions and conclusions of the Crown’s witness.
Home Invasion – An Aggravating Factor
A home invasion occurs if there are individuals inside the dwelling at the time of the break and enter. In cases of home invasions, the court is required by law under Section 348.1 to see whether the house was occupied at the time of invasion and that the accused knew this fact, or he was reckless or used violence or threat thereof. If that is the case, it will be considered an aggravating circumstance resulting in a harsher punishment.
After the Arrest
If the police arrest you for a break and enter, you still retain all your legal and Constitutional rights, which include the right to consult a lawyer, right to obtain bail, and more. The police must allow you to speak with your lawyer before taking your statement. In such scenarios, it is advised that a good Criminal Defense Lawyer should be contacted so that you being a layman in terms of legal issues may not make a grave mistake.
The next step after arrest is to obtain bail. Unless the police deem the accused releasable, they will most likely want to keep them in detention. Here, a Criminal Defense Lawyer will help the accused obtain bail from a court of law. At a bail hearing, the lawyer will argue before the justice of the peace of a Judge as to why their client is legally entitled to be released on least restrictive terms.
If you are in Ontario and you ever find yourself in a situation where you are or might be arrested, give Kahlon Law a call at 1 (844) 978-8444 and rest assured that there will be a licensed professional looking out for your freedom and well-being.