Johnson v. The Queen
1977 Supreme Court of Canada (available at CanLII)
re: Actual and Constructive “break”
In Johnson v. The Queen, the Supreme Court of Canada wrestled with the contentious issue of what it means to “break”. The accused had been convicted of BNE and Theft after he entered a dwelling house under construction through a doorway with no door or barrier in place. The Supreme Court upheld the conviction for BNE and stated that the accused committed a “constructive” break even though the barrier was artificial.
However, the Supreme Court did acknowledge that constructive breaks are highly subjective, and that Crown has the discretion not to pursue BNE when there is an artificial break. The Court drew a comparison between attempt murder and aggravated assault, stating that the Crown could pursue either offence depending upon the circumstance of the particular case, and likewise with a constructive break the Crown may choose to pursue BNE or only Theft depending upon the facts of the particular case.
Therefore ask yourself:
What is it about the facts of my case that would convince Crown that it is worth the effort of arguing a “constructive” break? The more deeply the accused intrudes into the clearly private and/or sectioned off areas of a home the more likely the story will convince crown that the constructive break occurred, as opposed to a story where the accused briefly enters a premise to steal something clearly visible from a distance.