Criminal Code of Canada - section 351(1) - Possession of break-in instrument

section 351(1)

INTRODUCTION AND BRIEF DESCRIPTION

Possession of tools for breaking into places or vehicles without lawful excuse is a criminal offense.

SECTION WORDING

351(1) Every one who, without lawful excuse, the proof of which lies on them, has in their possession any instrument suitable for the purpose of breaking into any place, motor vehicle, vault or safe under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for such a purpose, (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding ten years; or (b) is guilty of an offence punishable on summary conviction.

EXPLANATION

Section 351(1) of the Criminal Code of Canada is a provision that criminalizes the possession of any instrument that is suitable for breaking into any place, motor vehicle, vault, or safe, without a lawful excuse. This section places the burden of proof on the accused to demonstrate that they had a valid reason for possessing such an instrument. The provision is designed to prevent individuals from possessing tools that could be used to commit a crime, and to deter burglars, car thieves, and other criminals from carrying tools that could assist them in committing their crimes. The law recognizes that the possession of such tools can be harmful to the public, as it facilitates break-ins and thefts. The offence is a serious one, punishable by up to ten years in prison if convicted on an indictment. Alternatively, the offence can be punished by summary conviction, which carries a maximum sentence of 2 years less a day. The severity of the sentence reflects the seriousness of the crime and the need for deterrence. It is important to note that the mere possession of the instrument is not enough to prove guilt under this section. The Crown must also show that the circumstances give rise to a reasonable inference that the instrument has been used or was intended to be used for breaking into a place, motor vehicle, vault, or safe. This requirement ensures that individuals are not unfairly prosecuted for possessing tools that they may have had a legitimate reason for possessing, such as a locksmith or repair technician. Overall, section 351(1) of the Criminal Code of Canada plays an essential role in deterring criminal activity and promoting public safety by ensuring that individuals who possess instruments suitable for breaking into places or vehicles do so lawfully.

COMMENTARY

Section 351(1) of the Criminal Code of Canada is a provision that prohibits the possession of any instrument suitable for breaking into any place, motor vehicle, vault or safe, under circumstances that give rise to a reasonable inference that the instrument has been used or is or was intended to be used for such a purpose. The section provides for harsh penalties for those found guilty of this offence, which can lead to a term of imprisonment not exceeding ten years. The purpose of this section is to deter the use of tools or instruments to break into places, motor vehicles, vaults, or safes. This provision covers a wide range of tools and instruments that can be used for breaking into these places, such as crowbars, lock picks, bolt cutters, and other similar tools that have no innocent purpose. Consequently, any person found with such tools in their possession will be deemed to be in violation of the law unless they can provide lawful excuse for possessing them. One of the challenges in enforcing this section of the Criminal Code is the requirement that the proof of lawful excuse lies on the accused. This means that the burden of explaining why they has the tools in their possession lies with them. One reasonable excuse could be that the accused is in a trade that requires such tools, like a locksmith or a safe repair technician. However, if the accused is not in such a trade, and they cannot provide any other lawful excuse, they may be found guilty. The other challenge in enforcing the provision is the requirement for the Crown to establish that the accused intends or has used the instrument in breaking into a place, motor vehicle, vault or safe. However, the section recognizes that in some circumstances, the mere possession of the instrument gives rise to a reasonable inference that the instrument has been used or is intended to be used for such a purpose. For instance, the possession of a crowbar and a mask near a residential property could give rise to an inference that the accused intended to use the crowbar to break into the property. In addition to the offence under section 351(1) of the Criminal Code, the code also provides for an offence of breaking and entering under section 348. This offence is committed when a person enters a place without lawful excuse and with the intent to commit an indictable offence therein. Breaking and entering can result in much harsher penalties, including a maximum sentence of life imprisonment, compared to the maximum sentence of ten years under section 351(1). In conclusion, Section 351(1) of the Criminal Code of Canada provides a deterrent to those who would use tools and instruments to break into places, motor vehicles, vaults, or safes. The provision also recognizes the importance of lawful excuse in possession of such tools and the inferences that may arise from their possession. However, while the provision helps to prevent some property offences, it is not without its limitations because enforcing it requires prosecutors to establish the accused's intent and lack of lawful excuse.

STRATEGY

Section 351(1) of the Criminal Code of Canada is a provision that deals with the possession of instruments suitable for breaking into any place, motor vehicle, vault, or safe. It criminalizes the possession of such instruments under circumstances that give rise to a reasonable inference that the instrument has been or is intended to be used for such a purpose. This provision raises strategic considerations for individuals facing charges, for defense lawyers, and for prosecutors. For individuals facing charges under this section, it is important to understand the charges they are facing and the elements that must be proven by the prosecution. To be convicted under this section, the prosecution must prove beyond a reasonable doubt that the accused had the instrument in their possession and that the circumstances gave rise to a reasonable inference that it was intended for breaking into a place, motor vehicle, vault, or safe. If the accused can challenge either of these elements, they may be able to avoid conviction. One possible strategy for the accused is to challenge whether the instrument is suitable for the purpose of breaking in. This would require demonstrating that the instrument is not suitable for the intended purpose, that it was not intended for use in breaking in, or that it was not in the possession of the accused at the relevant time. Another strategy may be to argue that there was a lawful excuse for possessing the instrument, such as that it was being used for a legitimate purpose, such as employment or hobby. For defense lawyers, it is important to consider the potential defenses that can be raised on behalf of their clients. They may also explore other means to challenge the prosecution's case, such as challenging the search and seizure of the instrument or arguing that the accused's Charter rights were violated during the investigation or arrest. Prosecutors, on the other hand, may consider the circumstances of the case and whether they are sufficient to prove the accused's guilt beyond a reasonable doubt. They may also assess whether the evidence is admissible and if there are any weaknesses in their case that could be challenged by the defense. Strategic considerations in dealing with this provision can have significant implications for both the accused and the prosecution. For the accused, a successful defense may lead to reduced charges or a complete acquittal. For prosecutors, a strong case may lead to a conviction, while a weak case may result in reduced charges or even a withdrawal of the charges. It is therefore important that both the accused and the prosecution carefully consider their strategies in dealing with this provision.