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Elements of Break and Enter

  • Date, Time and Location of the Offence
  • Identification of the Accused
  • Legal Definition of the Location
  • Information from the owner/caretaker
    • Who Owns the Location
    • Who last secured the location, and what was the condition of premise prior to BNE
    • Who can describe (and what was) the condition of premise after the BNE
  • Evidence of “Break” and “Enter”(Entrance)
  • Evidence the accused committed or intended to commit an Indictable offence
    • Confirm that accused has no lawful (legal) claim to enter the location
      • Common claims – harsh weather, mistake often due to intoxication, civil claims (he owed me money)
      • There is a presumption in subsection 348(2)  – View the presumption in Statutory law
        • You should ask and document the accused’s reply to your presumptive question. Eg: Do you have any lawful reason for being inside the premise?
    • If the accused committed another offence review and address the elements of the offence that accused committed after they had broken in. In most cases this will be “Elements of Theft”
    • If the accused did not complete the second offence, how did they show their intent to commit the other indictable offence? A BNE without the evidence of the intention to commit another offence is a mischief.
  • Aggravating Circumstances – Section 348.1 
    • Were people home during the BNE –  people sleeping
      • Must prove knowledge of people home or recklessness
    • Violence was used during the BNE – home invasion


Statutory wording for BNE – Section 348