Break and Enter Legal Definition:

A burglary; to break and enter onto another's premises, land or real property with the intent to there commit a crime, most typically theft

A burglary; to break and enter onto another's premises, land or real property with the intent to there commit a crime, most typically theft.

A term used by some common law jurisdiction in preference to burglary but which, with distinctions of points of detail, prohibits the same conduct.

Canada's Criminal Code defines break and enter at ¶348 and completes the description with a definition of break at ¶321 and entry at ¶350; all as follows:

"321.... break means ... to break any part, internal or external, or ... to open any thing that is used or intended to be used to close or to cover an internal or external opening."

"348. Every one who
  • breaks and enters a place with intent to commit an indictable offence therein,
  • breaks and enters a place and commits an indictable offence therein, or
  • breaks out of a place after committing an indictable offence therein, or entering the place with intent to commit an indictable offence therein,
  • is guilty
  • if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
  • 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.
"... for the purposes of proceedings under this section, evidence that an accused 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 broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after
  • committing an indictable offence therein, or
  • entering with intent to commit an indictable offence therein.
“(P)lace” means a dwelling-house; a building or structure or any part thereof, other than a dwelling-house; a railway vehicle, a vessel, an aircraft or a trailer; or a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes."

"350. .... (A) person enters as soon as any part of his body or any part of an instrument that he uses is within any thing that is being entered; and a person shall be deemed to have broken and entered if he obtained entrance by a threat or an artifice or by collusion with a person within, or he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening."

break and enter pictureIt is customary for common law jurisdictions to have created a separate offence for the possession of break-in or burglar tools. For example, ¶351 of Canada's Criminal Code:

"Every one who, without lawful excuse, the proof of which lies on him, has in his possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for any such purpose, is guilty of an indictable offence...."

As with burglary, much case law exists dissecting the word break and enter, with offenders seeking to be relieved of a conviction on points of detail.

For example, in Canada, R v Fajtl, the accused suggested to the Court that he could not be convicted of break and entry since the premises was a mere 10-foot high wooden fenced enclosure topped with barbed wire. It's not place or a structure, Michael Fajtl told the Court and anyway, he climbed over the top and so he didn't go through a "permanent or temporary opening". The British Columbia Court of Appeal although likely impressed with the creative argument, rejected it saying that:

"... a structure is something of substantial size which is built up from component parts and intended to remain permanently on a permanent foundation, but it is still a structure even though some of its parts may be moveable as, for instance, about a pivot."

In R v Brown, the England Court of Appeal, in 1985, was entertained by Vincent Brown's argument that because he only leaned into someone else's premises, albeit through a broken woindow, he nonetheless never "entered" and on that basis, ought not to be convicted of burglary. Novel, but no cigar. The Court: ".... having broken a window, to put a hand, an arm or the upper part of a body through a broken shop window is capable of being found to be an entry."

In 1977, David Johnson's case, R v Johnson, made it all the way to Canada's highest court. The facts:

"The accused entered a partly constructed unoccupied dwelling-house at 3.30 a.m. through an open doorway leading into the house from a car-port. The door had not yet been installed. The owner, as a temporary measure, had nailed a sheet of plywood over the opening, but it would appear that some one had removed it as it was lying on the ground at the time of entry by the accused and a companion."

In upholding Johnson's conviction for break and enter, the Supreme Court noted that:

"At common law an actual breaking occurred whenever any part of the building or of its closed fastenings was displaced as, for example, by drawing a bolt, turning a key or lifting a latch. The opening of a closed but unlocked bedroom window was a breaking while the further opening of a window already partly opened was not. The reason suggested for this precious distinction was that when a householder left a window or a door partly open he offered a visible invitation to enter. Constructive breaking, in the absence of actual breaking, extended at common law to cases in which the intruder entered the premises by some aperture which, by necessity, was left permanently open, such as a chimney."

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