A SERIOUS CALGARY DEFENCE LAWYER
The term “break and enter” can be confusing; for some think that proof of this offence requires an actual “break”, such as a door being kicked-in or a window broken. In Canadian criminal law proof of break and enter merely requires sufficient evidence that the accused break a “seal” into a building receptacle. This means that break and enter can occur even when the accused walks freely through an open door. Like many offences, there are varying degrees of break and enter. For example, “shop B&E” (or break and enter into a business) is less serious than breaking into a private dwelling house. Breaking into a garage of a private dwelling house is usually less serious than BE into the house living space. A break and enter into a place that is occupied is very serious. Home invasion is the most serious kind of break enter, carrying a starting point penalty of 8 years in jail.
Break and enter is usually conjoined with another purpose for entering the premises. For example, B&E can be committed for the purpose of theft or assault.
Though break and enter is often committed with violence or by persons looking to steal property, it is suprisingly often committed by accident. For instance, it is not unusual to have persons commit break and enter in a place to seek shelter from frigid weather. Break and enter sometimes occurs when intoxicated people mistakenly enter the wrong home. Sometimes break and enter is charged when an accused, who is released on conditions not to attend home, covertly returns against the wishes of another. This sometimes happens in domestic conflict incidents. Though break and enter (B&E) is often charged, there is a less serious offence called “being unlawfully in a dwelling house”.
The point is, B&E is a serious charge, that could have serious ramifications if convicted. It is not unusual for judge’s in Alberta to impose stiff jail sentences for those convicted of B&E. Break and enter charges can also be complicated from a defence perspective.
David Chow has defended clients charged with break and enter in Calgary and elsewhere for over 15 years. The starting point to a B&E defence requires the defence lawyer to appreciate (1) whether a BE occurred, (2) whether the accused is properly identified, (3) the forensic evidence (if any), (4) the accused’s colour of right to the property and (5) the actual reasons for the accused’s presence in the premises. For example, if the accused was reckless or willfully blind to entering a dwelling house, but did not do so for the purpose of committing another offence, he or she may not be guilty of break and enter, but the lesser offence of being unlawfully in a dwelling house.
BREAK AND ENTER IN ALBERTA
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