Lawyer for Break and Enter Charges Serving Mississauga, Brampton, Oshawa, Caledon, Among Other Places

348 (1) Every one who

(a) breaks and enters a place with intent to commit an indictable offence therein,

(b) breaks and enters a place and commits an indictable offence therein, or

(c) breaks out of a place after

(i) committing an indictable offence therein, or

(ii) entering the place with intent to commit an indictable offence therein, is guilty

(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and

(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.

Presumptions

(2) For the purposes of proceedings under this section, evidence that an accused

(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

(b) broke out of a place is, in the absence of any evidence to the contrary, proof that he broke out after

(i) committing an indictable offence therein, or

(ii) entering with intent to commit an indictable offence therein.

(3) For the purposes of this section and section 351, place means

(a) a dwelling-house;

(b) a building or structure or any part thereof, other than a dwelling-house;

(c) a railway vehicle, a vessel, an aircraft or a trailer; or

(d) a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.

dwelling-house means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and includes

(a) a building within the curtilage of a dwelling-house that is connected to it by a doorway or by a covered and enclosed passage-way, and

(b) a unit that is designed to be mobile and to be used as a permanent or temporary residence and that is being used as such a residence;

In our society, the home is a place of great sanctity: see Eccles v. Borque (1975), 1974 CanLII 191 (SCC), 19 C.C.C. (2d) 129 (S.C.C.), Regina v. Landry (1986), 1986 CanLII 48 (SCC), 25 C.C.C. (3d) 1 (S.C.C.), and Regina v. Feeney (1997), 1997 CanLII 342 (SCC), 115 C.C.C. (3d) 129 (S.C.C.).  Due to the robust expectation of privacy people have in their own homes, the law provides formidable protection against state intrusion.  Because of the sense of security that people enjoy while in their homes, the law punishes intrusions by individuals into homes more severely than other types of break-ins.  When a home is broken into, there is always the risk of physical harm to the occupants of the home: see Regina v. C. (J.J.) (2003), 2003 PESCAD 26 (CanLII), 180 C.C.C. (3d) 137 (P.E.I.S.C. A.D.).  For these reasons, break-ins of dwelling houses are punishable by a maximum of life imprisonment: see Criminal Code, s.348(1)(d).

Mr. Snow breaks into people’s homes habitually.  Lengthy prison sentences, seven of them in the penitentiary, have not deterred him.  Parole and statutory release conditions cannot restrain him.  I have not been presented with anything to suggest that his behaviour will change anytime soon.  In sentencing Mr. Snow, I must give paramount consideration to protecting the public through deterrence and incapacitation, constrained only by the fundamental principle of proportionality in s.718.1 of the Criminal Code.

In Regina v. Carvalho (2006), 2006 CanLII 12959 (ON CA), 209 O.A.C. 19, the Court of Appeal for Ontario considered the fitness of a global sentence of five years’ imprisonment for a break and enter of a home, followed by an attempted break and enter of a shed that was attached to the home.  Like Mr. Snow, the accused in that case had a lengthy criminal record, including 14 convictions for breaking and entering.  The trial judge imposed a sentence of five years’ imprisonment for the break and enter of the dwelling house, and three years’ concurrent for the attempted break and enter of the shed.  In a brief endorsement upholding a total sentence of five years’ imprisonment, the Court held:

We acknowledge that the sentence of five years imprisonment was stiff and that the appellant’s longest previous sentence was two years imprisonment.  However, in our view, given that the appellant broke into a residential dwelling in the early morning hours when the female occupant was present, that he has a significant criminal record for similar offences, that he had twice previously been sentenced to the penitentiary for such offences, and that he was on parole at the time these offences were committed, the sentence imposed was not unfit.

The case before me is very similar to Carvalho.  The only difference is that, while Mr. Carvalho broke into a house at night as the victim was sleeping, Mr. Snow broke in during the day while the victim was awake and fully aware of what was happening.  It is unclear what scenario is worse.  Both are extremely serious, even when violence is not used or threatened.

Keeping in mind the penitentiary sentences that Mr. Snow has received in the past for similar offences, and in view of the fact that he was on parole for break and enter charges when he committed this offence, a substantial penitentiary sentence is warranted.  With reference to Carvahlo, an appropriate sentence for this offence is four years’ imprisonment.  I give credit to Mr. Snow for the amount of time he has spent in pre-trial custody, which is now just over three months.  Applying the customary two-for-one credit for pre-trial custody, I deduct six months from the sentence I would otherwise impose, and impose a sentence of three years and six months’ imprisonment.  This sentence is to be served consecutively to any other sentence that Mr. Snow is presently serving.