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Break And Enter And Home Invasion Lawyer In Toronto

Mississauga, Brampton and Newmarket Break and Enter and Home Invasion Lawyer

Commonly Asked Questions

  1. What is break and enter?
  2. What is the sentence for break and enter?
  3. What is break and enter into a dwelling?
  4. What is the sentence for break and enter into a dwelling?
  5. What is possession of burglary tools?
  6. What is the sentence for possession of burglary tools?
  7. What is home invasion?
  8. What is the sentence for home invasion?
  9. What are my Charter rights?
  10. Can the Charter help my defence?
  11. Can I get assistance from Legal Aid Ontario for my case?

Break and enter, break and enter into a dwelling and home invasion are serious offences that attract serious sentences. If you have been accused of these types of offences, your choice of defence lawyer will have a major impact on your future.

I have more than 35 years of experience defending clients against allegations of break and enter, break and enter into a dwelling and home invasion. I provide my clients with the kind of strong, intelligent defence needed to protect their rights and freedom.

Call Defence Lawyer Anthony De Marco for a Free Consultation.

Contact my Toronto, Ontario, office today to discuss your break and enter, break and enter into dwelling or home invasion case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in most cases. You can reach me by phone at (416) 651-2299 or toll free at 1-888-399-3164 or by e-mail.

Understanding the Offence of Break and Enter with Intent

Break and enter is the offence of breaking into premises with the intent to commit a criminal offence therein. Note the word "intent." That means an accused can be guilty of break and enter even if the accused does not actually commit another criminal offence once inside the premises, provided the accused had the intent to commit another criminal offence such as theft.

There are two types of break and enter offences: 1) break and enter into a dwelling and 2) break and enter into a place other than a dwelling. A dwelling can be a house, apartment or even a garage. A non-dwelling can be a warehouse, a convenience store or any such other similar place.

The word "break" does not mean that this offence requires the accused to actually break down a door or shatter a window. In fact, "breaking" can be as simple as opening a door and walking inside, or even reaching into an open window.

Section 348 of the Criminal Code of Canada provides as follows:

  1. 348 (1) Every one who
    1. (a) breaks and enters a place with intent to commit an indictable offence therein,
    2. (b) breaks and enters a place and commits an indictable offence therein, or
    3. (c) breaks out of a place after
      1. (i) committing an indictable offence therein, or
      2. (ii) entering the place with intent to commit an indictable offence therein, is guilty
    4. (d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and
    5. (e) 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.
  2. (2) For the purposes of proceedings under this section, evidence that an accused
    1. (a) 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
    2. (b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after
      1. (i) committing an indictable offence therein, or
      2. (ii) entering with intent to commit an indictable offence therein.
  3. (3) For the purposes of this section and section 351, place means
    1. (a) a dwelling-house;
    2. (b) a building or structure or any part thereof, other than a dwelling-house;
    3. (c) a railway vehicle, a vessel, an aircraft or a trailer; or
    4. (d) a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.

Section 350 of the Criminal Code of Canada provides as follows:

350 For the purposes of sections 348 and 349,

  1. (a) 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
  2. (b) a person shall be deemed to have broken and entered if
    1. (i) he obtained entrance by a threat or an artifice or by collusion with a person within, or
    2. (ii) he entered without lawful justification or excuse by a permanent or temporary opening.

What is the Sentence for Break and Enter?

A conviction for break and enter into a dwelling carries a maximum sentence of imprisonment for life. Break and enter into a non-dwelling carries a maximum sentence of 10 years in prison. These are very serious consequences.

As an experienced criminal defence lawyer, I work hard to win acquittals for my clients. If that is not realistic, I will seek your permission to negotiate for a lesser punishment.

If your case requires a jury trial, I have the necessary experience, advocacy skills and confidence to convincingly argue your case to the jury.

What is Home Invasion?

A home invasion occurs if there are people inside the dwelling at the time of the break and enter. These offences attract much longer prison sentence than a simple break and enter. Home invasion is treated by the Crown as a much more serious offence. You need a very skilled defence lawyer if you are facing a home invasion charge.

Section 348.1 of the Criminal Code of Canada provides as follows:

  1. 348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,
    1. (a) knew that or was reckless as to whether the dwelling-house was occupied; and
    2. (b) used violence or threats of violence to a person or property.

What is the Offence of Unlawfully in a Dwelling House?

Section 349 of the Criminal Code of Canada provides as follows:

  1. 349 (1) Every person who, without lawful excuse, enters or is in a dwelling-house with intent to commit an indictable offence in it is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years or of an offence punishable on summary conviction.
  2. (2) For the purposes of proceedings under this section, evidence that an accused, without lawful excuse, entered or was in a dwelling-house is, in the absence of any evidence to the contrary, proof that he entered or was in the dwelling-house with intent to commit an indictable offence therein.

The most obvious defence to a charge of unlawfully in a dwelling is having a lawful excuse to enter the dwelling house.

What is the Offence of Possession of Burglary Tools?

Subsection 351(1) of the Criminal Code of Canada provides as follows:

  1. 351(1) Every person who, without lawful excuse, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe knowing that the instrument has been used or is intended to be used for that purpose.
    1. (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or
    2. (b) is guilty of an offence punishable on summary conviction.

What is the Offence of Wearing a Disguise with Intent?

Section 351(2) of the Criminal Code of Canada provides as follows:

  1. 351(2) Every person who, with intent to commit an indictable offence, has their face masked or coloured or is otherwise disguised is guilty of
    1. (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
    2. (b) an offence punishable on summary conviction.

DNA and Other Forensic Evidence

Forensic evidence, such as DNA evidence, is just one type of evidence that the Crown can try to introduce against a person accused of a crime. The defence can challenge the admissibility of forensic evidence on the basis of relevance, prejudice or that there is a lack of a sufficient scientific foundation to make the evidence reliable and worthy of being admitted, in other words, the forensic evidence is inadmissible because it is based on "junk science".

Over the years, there have been several types of forensic evidence that have been rejected by the courts in the United States and, to a lesser extent, Canada, including voice print identification, comparative bullet lead analysis and several indicators of arson dependent on visual cues.

Likewise, there are various other types of forensic evidence which are possibly unreliable, such as microscopic hair comparison, and "pattern comparison" evidence such as bite marks, tire marks and handwriting.

Even in cases where the forensic evidence is ruled admissible, the defence can still try to weaken the impact of the evidence by arguing, for example, that the results of the forensic testing were the subject of "motivated perception". In other words, the scientist who did the testing interpreted the results so as to support his or her expectations or the expectations of the police or Crown prosecutors. The defence can argue, or call evidence to show, that the forensic examiner should have first tested the evidence blindly without knowing anything about the case in order to avoid a subconscious bias. Studies have shown that even the opinion of fingerprint analysts can be affected by the analysts' preconceived notions about the case. Also, there is always a risk of a false positive. Moreover, if the laboratory that completed the testing, such as the Centre of Forensic Sciences, is known to have made errors on occasion in the past, the defence can argue that the error rates should also be entered in evidence.

In appropriate cases, and where funds permit, the evidence can be re-tested by an independent laboratory for verification.

A good defence lawyer should know the weaknesses of specific scientific techniques or seek out an appropriate defence consulting expert to learn about and present evidence regarding those weaknesses.

Pre-Trial Charter Applications

Often, the best defence to a criminal charge involves a challenge to the investigation that resulted in the arrest of the accused or the collection of evidence against the accused. The police are not allowed to breach the rights that are guaranteed to the accused by the Canadian Charter of Rights and Freedoms.

I will investigate any possible Charter breaches by carefully reviewing the Crown disclosure documents, including the documents used by the police to obtain search warrants for the home, car or other property of the accused, and the documents used by the police to obtain production orders, such as for cell phone records and wiretap authorizations.

If I detect any violation of the Charter rights of the accused or violation of acceptable investigative procedures established by the courts, I will proceed with an application asking for the exclusion of evidence from the trial of the accused obtained illegally by the police, including the statements of the accused and other evidence seized during the investigation.

I have an established reputation for success in pre-trial applications. Winning a Charter application will result in the exclusion of evidence if the court determines that not excluding the evidence will bring the administration of justice into disrepute. The exclusion of evidence often results in a finding of not guilty if the Crown's remaining evidence is insufficient to prove that the accused committed the offence beyond a reasonable doubt.

I have the necessary experience, research skills, writing skills, and advocacy skills to prepare and effectively argue pre-trial Charter applications. The value of legal writing skills cannot be overstated since proceeding with pre-trial Charter applications will require the preparation of several documents including a Notice of Application, an Affidavit, and a Factum setting out the relevant facts and summarizing the relevant case law.

Electing to Have a Preliminary Inquiry

In cases in which a Defendant is exposed to a possible period of 14 years or more in jail, the Defendant will have the right to proceed with a preliminary inquiry in the Ontario Court of Justice and then a trial in the Superior Court of Justice before a court composed of a Judge sitting with a jury or without a jury. In the past, this level of court was referred to as "High Court".

The completion of a preliminary inquiry is not mandatory. The Defendant has the right to waive the preliminary inquiry and to proceed directly to trial in either the Ontario Court of Justice or the Superior Court of Justice. If the trial is to be completed in the Superior Court of Justice, the waiver of the preliminary inquiry will require the consent of the Crown.

At a preliminary inquiry, the Crown is required to call some evidence upon which a properly instructed jury, acting reasonably, may return a verdict of guilt. This is an easy test for the Crown to meet in the vast majority of cases. Accordingly, it is relatively rare for someone who proceeds with a preliminary inquiry to be discharged with respect to all of the charges which he or she is facing. The real value in having a preliminary inquiry is not in the hope of being entirely discharged, thereby bringing the entire criminal proceedings to an end, but in being able to better prepare the case for trial. The defence lawyer will have an opportunity to cross-examine and test the evidence of the primary Crown witnesses. An experienced and skilled defence lawyer can discover the strengths and weaknesses of the Crown witnesses and commence building an effective defence strategy. A preliminary inquiry is especially valuable for the defence in cases involving young, infirm, unreliable or unsavory Crown witnesses.

Call Defence Lawyer Anthony De Marco for a Free Consultation.

Contact my Toronto, Ontario, office today to discuss your break and enter, break and enter into a dwelling or home invasion case. I offer a free 30-minute consultation. For your convenience, I offer reasonable payment plans. I also accept Legal Aid in most cases. You can reach me by phone at (416) 651-2299 or toll free at 1-888-399-3164 or by e-mail.