348

Breaking and entering with intent, committing offence or breaking out

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,

is guilty

(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.

Presumptions

(2) For the purposes of proceedings under this section, evidence that an accused

(a) broke and entered a place or attempted to break and enter a place is, in the absence of evidence to the contrary, proof that he broke and entered the place or attempted to do so, as the case may be, with intent to commit an indictable offence therein; or

(b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after

(i) committing an indictable offence therein, or

(ii) entering with intent to commit an indictable offence therein.

Definition of place

(3) For the purposes of this section and section 351, place means

(a) a dwelling-house;

(b) a building or structure or any part thereof, other than a dwelling-house;

(c) a railway vehicle, a vessel, an aircraft or a trailer; or

(d) a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.

Annotations | French

• Section 348
• The term “dwelling-house” is defined in s 2.
• The definition of a dwelling-house does not include: (i) a building that has been abandoned and is no longer kept or occupied as a residence; or (ii) a building under construction that has never been kept or occupied as a residence. However, these types of buildings still fit into the definition of “place” within this section (R v Paquet and Vieno, [1978] OJ No 980 (CA); R v Sappier, 2005 NBPC 37 at para 35).
• A house does not have to be occupied at the time of the offence to still be “kept” as a residence and therefore be considered a dwelling-house (R v DeWolfe (1988), 82 NSR (2d) 175 (CA) at para 6).
• A motel room qualifies as a dwelling-house, as it is kept or occupied as a temporary or permanent residence (R v Henderson, [1974] BCJ No 796 (Prov Ct (Crim Div)).
• A tent being used as a temporary residence where people are currently sleeping qualifies as a dwelling-house (R v Howe (1983), 57 NSR (2d) 325 (SC (AD)).
• Definition of “structure”
• Determining whether something is a “structure” for the purposes of subsection 348(3)(b) is a question of fact. A compound that is surrounded by a permanent fence on all sides, or a permanent fence on three sides and a building on the fourth side, is considered a structure (R v Thibault 1982 CanLII 3780 (NSSC) at para 23*).
• However, the definition of structure does not include unenclosed spaces, and “must be something that can be broken into and entered.” For instance, an unfenced yard with no physical barrier to pedestrians is not considered a structure (R v Ausland, 2010 ABCA 17 at para 11).
• Other Definitions
• The term “break” is defined in s 321.
• The term “enter” is defined in s 350(a).
• The circumstances in which a person shall be deemed to have broken and entered are outlined in s 350(b).
• Presumption of Intent
• Sections 348(1)(a) and 384(c)(ii) are specific intent offences that require the Crown to prove that that the accused had an intent to commit an indictable offence when breaking and entering a place; therefore, the defence of self-induced intoxication can be used for these offences. Sections 348(1)(b) and 348(c)(i) are general intent offences and only require proof that an indictable offence was committed after the breaking and entering. Therefore, the defence of self-induced intoxication does not apply to these offences under sections 348(1)(b) and 348(c)(i). However, if the indictable offence that was allegedly committed after the breaking and entering was a crime of specific intent, the defence of self-induced intoxication is available, and the charges may not be made out (R v Quin, [1988] 2 SCR 825 at paras 11-12; R v Halupa (1993), 113 Nfld. & PEIR 334 (SC (AD)).
• To obtain a conviction under section 348(1)(a) or 348(c)(ii), the Crown must prove two elements: (i) the accused committed the break and entry or breaking out of a place; and (ii) the accused had the intent to commit an indictable offence within. For the second element, section 348(2) creates a presumption of intent. The accused can rebut this presumption by providing “evidence to the contrary” that raises a reasonable doubt that the accused had intent to commit an indictable offence. Where the accused provides “evidence to the contrary” that is rejected as unbelievable, the presumption holds. However, where the “evidence to the contrary” is accepted, the burden is then on the Crown to prove the requisite intent beyond a reasonable doubt (R v Proudlock, [1979] 1 SCR 525 at paras 45-58).
• The British Columbia Court of Appeal held that this statutory presumption did not violate s 7 for the reasons that the courts in Slavens and Nagy accepted in arguments under s 1 in those cases (R v Slavens (1991), 64 CCC (3d) 29 (BCCA); ***R v Nagy *(1988), 30 OAC 12**; R v Singh, 2005 BCCA 591).
• Evidence to the contrary is any evidence that “tends to negate the accused’s intention to commit an indictable offence” after breaking and entering a place. This evidence may emerge from either the Crown’s case or the accused’s defence and must be believed by the trier of fact (the judge or the jury, as the case may be) (R v Atkinson, 2012 ONCA 380 at para 105; R v Campbell (1974), 17 CCC (2d) 320 at 322 (Ont CA)).
• “Evidence to the contrary” may include evidence that the accused was intoxicated due to drugs or alcohol (***R v Campbell *(1974), 17 CCC (2d) 320 at 322 (Ont CA)**); R v Nolet (Charette) (1980), 4 MVR 265 (Ont CA)).
• Evidence of an accused’s good character is not “evidence to the contrary” for the purposes of this section (R v Abbas Ali Khan (1982), 36 OR (2d) 399 (CA)).
• Further, evidence that no offence was committed after the accused broke and entered the place is not “evidence to the contrary” and the presumption would stand in such a case (R v Rodney, 2007 ONCA 314 at para 7).
• Doctrine of recent possession
• Guilt of breaking and entering can be inferred if the accused is found to be in possession of stolen goods and there is evidence that a break and enter has occurred (R v Kowlyk, [1988] 2 SCR 59).