Breaking and Entering & Mischief criminal charges in Quebec
Have you been charged with breaking and entering? Learn more about break and enter charges.
Have you been detained by Police? Call Montreal criminal legal counsel Randi Zaritsky (514) 944-1737
Before we begin, if you’ve ever heard “You have the right to remain silent” take it seriously. Innocuous sounding questions can be a roundabout way detectives or Police officers can use to place you at or near a crime scene.
Your best DIY criminal defence is to ask for an attorney to represent you before any questions are answered.
In Canadian law, “breaking and entering” and “mischief” are distinct criminal offenses under the Criminal Code, each with specific definitions and penalties.
Penalties:
- Breaking and Entering a Dwelling House: This is a serious offence, as defined in Sections 348 (1) and 348 (1) (d), and can result in imprisonment for life.
- Breaking and Entering Other Buildings: This is less serious than entering a dwelling but still carries significant penalties. Conviction can lead to imprisonment for up to 10 years under Section 348 (1) (e).
Penalties can be influenced by factors such as the nature of the offence, whether the premises were occupied, and whether violence was used.
Possession of break-in instruments
Definition: Possession of break-in instruments is addressed in Section 351 of the Criminal Code. It involves having in a person’s possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe.
Lawful excuse
Possession of any instrument suitable for the purpose of breaking into a place
Knowledge that the instrument has been used or is intended to be used for that purpose
Penalties can be influenced by various factors, however, it is a serious offence which can lead to a sentence of up to a maximum of 10 years imprisonment.
Mischief
Definition: Mischief is addressed in Section 430 of the Criminal Code. It involves willfully damaging or interfering with property. Specific elements include:
Penalties:
- General Mischief: Under Section 430 (1), this offense may result in imprisonment for life if it causes actual danger to life; if it involves significant damage or interference.
- Mischief with Data: The penalties for mischief involving data or computer systems also vary, and can result in imprisonment.
The severity of the penalty for mischief often depends on the extent of the damage or disruption caused, whether the property was private or public, and any aggravating factors.
Legal Considerations: "Double Jeopardy"
The Kienapple principle in Canadian law is a legal doctrine that prevents a person from being punished more than once for the same conduct – more commonly referred to as “double jeopardy” . The principle originates from the Supreme Court of Canada case R v. Kienapple (1975) and is intended to ensure fairness in the criminal justice system by avoiding multiple convictions for offences that are factually similar or related by the nature of the conduct.
a) Overview of the Kienapple Principle
Principle: The Kienapple principle dictates that a person cannot be convicted or sentenced for multiple offenses arising from the same set of facts or conduct if one of the charges is already addressed by a conviction for a different offense. In other words, if multiple charges stem from the same incident, only one conviction will stand if the offenses are considered to be overlapping or if one offense is included within the other.
In R v. Kienapple, the accused was charged with both robbery and a related offense involving theft that arose from the same criminal transaction. The Supreme Court ruled that it was unjust to convict the accused of both offenses because they were based on the same facts, and the principle of double jeopardy was violated.
Application: The principle is typically applied in situations where:
- The Offenses Are Related: The offenses are based on the same act or transaction.
- Overlapping Conduct: To commit one offense a person has to essentially either commit another or one that is closely related to the other.
For example, if someone is charged with both assault and a more specific offense like assault causing bodily harm for the same incident, the Kienapple principle may prevent separate convictions for both charges as causing bodily harm is a more serious degree of an act of assault.
For example, if someone is charged with both theft and a more specific offense like possession of stolen property, the Kienapple principle may prevent separate convictions for both charges if the Crown can prove the offence of theft as the act of stealing necessitates the act of possessing the stolen property.
b) Modern Application
- Overlapping Charges: The principle is applied to prevent multiple convictions for offenses that overlap significantly in terms of the conduct they address. For instance, if a person is convicted of robbery and a separate charge of theft for the same incident, the Kienapple principle might apply to ensure that only one conviction stands.
- Sentencing: Even if the principle applies, it does not necessarily affect sentencing if the offenses are different enough to warrant separate penalties. However, it does mean that the person should not be punished multiple times for the same conduct.
c) Limitations and Considerations
- Different Legal Elements: If the offenses have distinct legal elements or involve different types of conduct, the Kienapple principle may not apply. For example, if the offenses are not overlapping and/or address separate aspects of criminal conduct, multiple convictions could be valid.
- Judicial Discretion: In applying the principle, Courts may lean on judicial precedent, the textual language of the law, legislative intent as well as consider the specifics of each case to determine whether the principle applies.
The Kienapple principle is a crucial safeguard against double jeopardy and ensures that individuals are not unfairly punished more than once for the same conduct. If you are dealing with complex criminal charges involving potentially overlapping offenses, consulting a lawyer who is knowledgeable about this principle and its application is important.
In addition, many offences may also be considered as being lesser and included to a principle offence either by the legislator or the Courts.
Lesser and Included Offenses
Definition: A lesser offense is a charge that is less severe than the primary offense with which it is associated. It usually involves fewer legal elements or a lower degree of harm.
Purpose: The primary purpose of charging a lesser offense is to provide a more appropriate level of punishment when the evidence or circumstances do not support the more serious charge. This can also allow for a fairer resolution of criminal culpability when the full elements of the more serious offense are not proven.
For example, in the case of an accusation of breaking and entering, an accusation of mischief may be considered a lesser and included offence as the act of physically breaking a door or window to enter someone’s property may cause damage.
Conclusion
Both the offences of breaking and entering and mischief are taken seriously, and the penalties can be severe, particularly if the crime involves violence or significant damage. The legal process involves determining the severity of the offense, the defendant’s intent, and any mitigating or aggravating circumstances.
If you are facing charges related to breaking and entering or mischief, or if you need more detailed information about these offenses, consulting a criminal defense lawyer is crucial. They can provide guidance based on the specifics of your case and the applicable laws.
Detained by Police? Call Montreal criminal barrister Randi Zaritsky LL.L., LL.B. at (514) 944-1737.