The offence of breaking and entering is outlined in section 348(1) of the Criminal Code.
A person commits the offence of breaking and entering when they break and enter a place to commit another crime within that place, regardless of whether they complete that other crime.
A person also commits the offence of breaking and entering when they break out of a place after entering it to commit another crime there, regardless of whether they complete that other crime.
A person breaks into a place where any part of their body or an instrument they are using is inside the place being entered, and this entrance was obtained using threat, artifice, or collusion with someone within, or without a lawful justification or excuse.
Person A breaks a window to enter person B’s home to sexually assault person B.
Person C threatens to harm person D’s dog if person D does not let person C into their home, and once inside person C kills person D and takes their valuables.
Person E breaks onto an aircraft intending to steal the luggage on board, but once they are on the plane person E reconsiders and leaves without taking anything.
R. v. Marini, 2014 ONSC 86
In R. v. Marini, the accused was convicted of three counts of breaking and entering for breaking into three separate Subway restaurants in Sault Ste. Marie over four days to take money from the cash registers.
R. v. Snow, 2007 ONCJ 426 (CanLII)
In R. v. Snow, the accused was convicted of one count of breaking and entering when he broke into a home using a screwdriver to steal some of the homeowner’s jewellery.
Offence Specific Defence(s)
Where the person has a lawful justification or excuse for being in the place, they will not have completed the offence of breaking and entering. A lawful excuse could include owning or living in the place broken into or having the owner’s permission to be there.
Not a Place
Where the person has broken and entered a place not included in the Criminal Code’s definition of a ‘place,’ – meaning somewhere other than a home, any part of a building or structure, a railway vehicle, a vessel, an aircraft, a trailer, or a pen or enclosure where fur-bearing animals are kept for breeding or commercial purposes – they may not have completed the offence of breaking and entering.
Where the person does not intend to commit another crime inside the place they have broken into, they may not have completed the offence of breaking and entering.
Where the person is standing outside or around the place and has not yet entered the place, despite intending to enter the place or to commit a crime in the area, they may not have completed the offence of breaking and entering.