The offence of breaking and entering can be found at section 348 of the Criminal Code of Canada. Under this section, there are various acts that would constitute the offence of breaking and entering. For example, the offence is constituted where a person breaks and enters into a place, with either the intent to commit an indictable offence or does in fact commit an indictable offence.
The offence of breaking and entering also occurs when a person breaks out of a place after either committing an indictable offence or entering the place with the intent to commit an indictable offence.
The term “place” includes but is not limited to a dwelling-house, a building or structure, a railway vehicle, vessel, aircraft or trailer. In circumstances where a person has alleged to have committed an offence of breaking and entering, and that the place the person is alleged to have broken and entered into is a dwelling-house, then this can be considered as an aggravating circumstance.
In order to be an aggravating circumstance the dwelling-house must have been occupied at the time of the offence, and that the person was either reckless as to whether the house was occupied or threatened violence to a person or property.
Where there is evidence that a person broke and entered into a place or attempted to do so, either of these actions is considered evidence that the person intended to commit an indictable offence, unless there is evidence to the contrary. This same presumption also applies when there is evidence that a person broke out of a place.
To overcome the presumption to commit an indictable offence, you need to raise evidence to the contrary that you did not intend to commit an indictable offence. The evidence to the contrary must raise a reasonable doubt, which can be done by raising evidence that is not disbelieved and that offers an explanation that may be reasonable true as to why you broke into the particular place.
Where you can overcome the presumption of an intention to commit an indictable offence, you can still be found guilty of a lesser included offence, such as possession of stolen goods or being unlawfully in a dwelling house.
Breaking and entering is considered to be a very serious offence, particularly when the place broken and entered into is a dwelling-house. Where the offence was committed in relation to a dwelling-house, a conviction carries with it a maximum penalty of life imprisonment. Where the offence does not involve a dwelling-house, then a person is liable to a maximum penalty of 10 years imprisonment for an indictable offence, and for a summary offence, to a term of imprisonment not exceeding 6 months and/or a fine not exceeding $5,000.