The crime of break and enter has two parts, (1) breaking into or out of a place and, (2) committing or intending to commit an indictable offence in such place. Breaking in does not require that a door or window be broken or a lock picked. If you walk into a house with an open front door without an invitation in, this could meet the definition of breaking in. Breaking out of a place after committing a crime, even if you previously had permission to enter in is another form of break and enter. This might occur if you enter a store during business hours and stay past closing with the intent to steal something.
There is no requirement under either breaking in or breaking out that a crime actually be committed, only that the accused intended to commit the crime. Unless there is evidence to the contrary, it is presumed that breaking and entering or breaking out of a place is done with the intent to commit an indictable offence or serious crime. In other words, the Crown only has to prove the first part, that unlawful entering or exiting occurred in order to get a conviction on a break and enter charge. If there was no intent to commit an indictable offence, it is important to speak with a lawyer who can help determine what evidence to present in order to show the lack of intent.
For the purposes of breaking and entering, the Criminal Code defines place to include: a dwelling house; any building other than a dwelling house; a train car, vessel, aircraft, or trailer; or any area where animals are kept as pets or livestock such as a barn or pen. A dwelling house is any structure occupied by people as a residence, either temporarily or permanently and includes all attached areas such as a garage. Recreational vehicles or campers that have residents can be dwelling houses.
It is important to note the difference between the punishments for break and enter in a dwelling house and break and enter in any of the other structures considered a place. When an offence occurs in a dwelling house, the punishment can be up to life in prison. If the location of the offence is any place other than a dwelling house, the maximum sentence is ten years in prison. This article only scratches the surface of the differences between dwelling and non-dwelling houses; there are many other rules and exceptions to those rules. You should discuss your particular situation with a lawyer who is knowledgeable about the complicated nuances of this area of law.
