Legal Project Management Plan & Checklist
A practitioner's guide to defending s. 348 Break and Enter dwelling-house charges in Canada, covering presumption rebuttals, forensics, and trial strategy.
What is the penalty for Break and Enter of a dwelling house?: Under section 348(1)(d) of the Criminal Code, breaking and entering a dwelling-house is a straight indictable offence carrying a maximum penalty of life imprisonment. A preliminary inquiry is available, and the Crown cannot proceed summarily.
How do you rebut the presumption of intent in a break and enter?: Section 348(2) creates a statutory presumption that an accused broke and entered with intent to commit an indictable offence. To rebut this, the defence must call "evidence to the contrary" such as extreme intoxication or an honest mistake of fact regarding consent or the nature of the premises.
What happens if the property is not a dwelling-house?: Breaking into a non-dwelling is a hybrid offence under section 348(1)(e). The Crown may elect to proceed by indictment (10-year maximum) or by summary conviction (2-year less a day maximum). If summary, a strict 12-month limitation period applies from the date of the offence under section 786(2).
How to defend a Break and Enter charge involving a non-dwelling when the Crown elects by indictment.
How to defend a Break and Enter charge involving a non-dwelling when the Crown elects summarily.
Jurisdiction: Provincial Court or Superior Court of Justice, depending on the accused's election under section 536(2).
The Process at a Glance: The practitioner conducts a conflict check and executes a Designation of Counsel. The Crown provides initial Stinchcombe disclosure, including police notes, CCTV, and forensic evidence (DNA/fingerprints). A mandatory Crown Pre-Trial (CPT) explores early resolution or the withdrawal of charges to lesser offences like Mischief. If the matter proceeds, the defence enters an election and plea, drafts any required Charter applications, and proceeds to trial or sentencing.
Key Legislation and Case Law: The primary framework is section 348 of the Criminal Code (R.S.C. 1985, c. C-46). A "dwelling-house" is defined in section 2. Aggravating factors for home invasions are codified in section 348.1. Summary limitation periods are governed by section 786(2). Preliminary inquiries are restricted to offences with 14+ year maximums under section 535.
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This legal matter plan provides a structured workflow for Criminal Law cases, outlining the standard Criminal Defence process. Utilize these tracking templates to manage your legal cases efficiently.
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| Matter numberⓘ | matter.matterNumber | text | Required | inheritedmatter-core |
| Matter title | matter.title | text | - | inheritedmatter-core |
| Matter typeⓘ | matter.matterType | text | - | inheritedmatter-core |
| Matter status | matter.status | text | - | inheritedmatter-core |
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| Client name | matter.clientName | text | Required | inheritedmatter-core |
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