INTRODUCTION AND BRIEF DESCRIPTION
This section defines what constitutes entering and breaking and entering for the purposes of other sections in the Criminal Code of Canada.
SECTION WORDING
350 For the purposes of sections 348 and 349, (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 (b) a person shall be deemed to have broken and entered if (i) he obtained entrance by a threat or an artifice or by collusion with a person within, or (ii) he entered without lawful justification or excuse, the proof of which lies on him, by a permanent or temporary opening.
EXPLANATION
Section 350 of the Criminal Code of Canada provides a definition of "entering" and "breaking and entering" for the purposes of sections 348 and 349. According to this section, a person is considered to have entered a place as soon as any part of their body or any instrument they use is within the space being entered. This definition is broad and includes situations where the person may not have fully entered the space, but has nonetheless crossed the threshold. Moreover, this section also defines what constitutes breaking and entering. A person is deemed to have broken and entered a place if they obtained entrance by a threat, an artifice, or by collusion with someone inside. They are also guilty of breaking and entering if they enter without lawful justification or excuse, which they must prove. This means that unless the person has a valid reason for being in the space, such as having permission or being authorized to enter, they are considered to have committed the crime of breaking and entering. Overall, section 350 is an important tool for law enforcement and prosecutors because it clearly defines the threshold for proving the crime of breaking and entering. It ensures that a person can be charged and convicted even if they have only entered a space partially, and clarifies that threats, manipulation, and collusion are considered illegal means of entering a space. By including these definitions in the Criminal Code, section 350 plays a key role in maintaining public safety and ensuring that those who engage in this type of criminal activity are held accountable.
COMMENTARY
Section 350 of the Criminal Code of Canada is an essential provision for the understanding of the offenses of breaking and entering, as well as attempted breaking and entering. The provision provides a clear definition of the concept of entry, which is fundamental for distinguishing between lawful and unlawful entry, and for establishing whether the offenses in question have been committed. Additionally, the provision outlines specific circumstances in which entry shall be deemed to have been achieved, such as when a person uses an instrument to enter or when he or she gains access through collusion, artifice, or threat. One of the key aspects of section 350 is its concept of entry. The provision outlines that any person who has any part of their body or instrument within any thing being entered shall be deemed to have entered. This definition is broad enough to cover a vast range of circumstances and scenarios, including those where an individual partially enters a building or property in an attempt to gain entrance. Additionally, it is essential to note that entry can be achieved without force or without causing any damage, which is important considering that one of the key elements of the offense of housebreaking is the requirement for a breaking or opening. Another critical aspect of section 350 is the provision which outlines when a person shall be deemed to have broken and entered. The section provides two circumstances under which an individual shall be deemed to have broken and entered. Firstly, if the person obtained entrance by collusion, artifice, or threat, he or she shall be considered to have broken and entered. This provision is essential for understanding situations where the means of entry used are not necessarily physical but involve manipulating or deceiving another person. Secondly, an individual who enters without legal justification or excuse and through a permanent or temporary opening will be deemed to have broken and entered. This provision is fundamental for cases where a person gains access to a building or property through a means other than a door or window, such as through an unlocked or open entrance. In addition to its definition of entry and its provisions on breaking and entering, the section also highlights the burden of proof in cases of attempted breaking and entering. The provision stipulates that the burden of proving lawful justification or excuse for entry lies on the accused, which means that in cases where the accused cannot justify or explain their attempted entry, he or she will be deemed to have committed the offense of attempted breaking and entering. In conclusion, section 350 of the Criminal Code of Canada is a vital provision for the understanding and prosecution of offenses related to breaking and entering. The section outlines the definition of entry, the circumstances under which entry shall be deemed to have been achieved, and the legal burden of proof in cases of attempted breaking and entering. By doing so, the section provides a clear and comprehensive framework for prosecuting individuals who commit these offenses and helps ensure that justice is served where such acts occur.
STRATEGY
Section 350 of the Criminal Code of Canada outlines the legal definition of breaking and entering, which is a serious criminal offense. If a person is charged with breaking and entering under this section, it is important to understand the strategic considerations that can affect the outcome of the case. One of the key strategic considerations when dealing with section 350 is the burden of proof. This section states that a person shall be deemed to have broken and entered if they entered without lawful justification or excuse, and the burden of proof lies on them. This means that the prosecution must prove beyond a reasonable doubt that the accused had no lawful justification or excuse for entering the premises. As a result, a defense strategy may focus on establishing that the accused had a lawful reason for entering the premises, such as consent from the owner or tenant, or a legitimate emergency. Another important consideration is the nature of the entrance. Section 350 specifies that a person enters as soon as any part of their body or any part of an instrument that they use is within the premises. This means that even a small part of the accused's body or tool can constitute entry. As a result, a defense strategy may focus on disputing the nature of the entry, such as arguing that the accused did not fully enter the premises or that they were not aware that they had entered. The severity of the offense is also an important consideration. Breaking and entering is a serious criminal offense that can result in significant penalties, including imprisonment, fines, and a criminal record. As a result, a defense strategy may focus on minimizing the severity of the offense through plea bargaining or arguing for a reduced sentence. The circumstances of the offense may also affect the case. For example, if the accused was intoxicated or under duress at the time of the offense, this may affect their culpability and the severity of the offense. A defense strategy may focus on arguing for reduced culpability or a reduced sentence based on these circumstances. Finally, the criminal history of the accused may also be a consideration. If the accused has a previous criminal record, this may affect the severity of the penalty they receive. A defense strategy may focus on minimizing the impact of the accused's criminal history, such as arguing that the previous convictions are not relevant to the current offense or that the accused has taken steps towards rehabilitation. Overall, dealing with section 350 of the Criminal Code of Canada requires a strategic approach that considers the burden of proof, the nature of the entry, the severity of the offense, the circumstances of the offense, and the criminal history of the accused. A successful defense strategy may involve a combination of these considerations, tailored to the specific facts of the case.