section 98(3)

INTRODUCTION AND BRIEF DESCRIPTION

Section 98(3) defines the terms entering and breaking and entering for the purposes of the Criminal Code of Canada.

SECTION WORDING

98(3) For the purposes of this section, (a) a person enters as soon as any part of his or her body or any part of an instrument that he or she uses is within any thing that is being entered; and (b) a person is deemed to have broken and entered if he or she (i) obtained entrance by a threat or an artifice or by collusion with a person within, or (ii) entered without lawful justification or excuse by a permanent or temporary opening.

EXPLANATION

Section 98(3) of the Criminal Code of Canada is a provision that outlines the circumstances surrounding entry into a structure or location without authorization. This provision is intended to create clarity around the definition of "breaking and entering" within the context of Canadian criminal law. According to this section, a person is considered to have "entered" a location as soon as any part of their body or an instrument they are using crosses the threshold of the location. This means that a person can be considered to have entered a location even if only a small part of their body or tool is inside. The provision goes on to state that a person can be deemed to have "broken and entered" if they obtained entrance through a threat, deception, or collusion from someone inside the location, or if they entered without lawful justification or excuse through a permanent or temporary opening. These provisions are important in defining the legal parameters surrounding breaking and entering offences. By providing a clear definition of what constitutes entry and breaking and entering, it enables law enforcement officials to more effectively investigate and prosecute offenders of this crime. Overall, Section 98(3) plays a crucial role in establishing the legal framework of breaking and entering within the context of the Canadian Criminal Code, providing clarity and structure to the law and ensuring that those engaged in criminal behaviour are held accountable for their actions.

COMMENTARY

Section 98(3) of the Criminal Code of Canada sets out the legal definition of "entering" and "breaking and entering" for the purposes of the offence of breaking and entering. This offence, also known as burglary, is one of the most serious property crimes in Canada and carries significant penalties upon conviction. Subsection (a) of section 98(3) explains that a person enters a place as soon as any part of their body or any part of an instrument that they use is within that place. This broad definition of entry is intended to capture any situation where an individual gains access to a building or structure without permission. For example, if a person reaches through an open window or sticks a tool through a crack in a door to gain access to a building, they have technically entered the place and may be charged with breaking and entering. Subsection (b) of section 98(3) provides two additional ways in which a person can be deemed to have broken and entered a place. The first is by obtaining entrance through a threat or artifice or by colluding with a person inside the place. This includes situations such as pretending to be a utility worker or police officer in order to gain access to a building. The second way a person can be deemed to have broken and entered is by entering without lawful justification or excuse through a permanent or temporary opening. This includes situations such as entering a building through an unlocked door or climbing through a broken window. Breaking and entering is a serious offence in Canada, with penalties ranging from a maximum of life imprisonment for offences involving violence to a maximum of 10 years imprisonment for non-violent offences. The severity of the penalties reflects the fact that these offences are not only a violation of property rights but also an invasion of the privacy and security of individuals and families. However, it should be noted that the offence of breaking and entering requires proof beyond a reasonable doubt that the accused committed the offence with the requisite intent. This means that the Crown must prove not only that the accused entered the place without permission but also that they did so with the intention of committing a crime such as theft or mischief. The defence may argue that the accused entered the place for a lawful purpose or without the requisite intent to commit a crime, which may reduce the severity of the charges or result in an acquittal. In conclusion, section 98(3) of the Criminal Code of Canada sets out the legal definition of "entering" and "breaking and entering" for the purposes of the offence of breaking and entering. This offence is considered a serious violation of property rights and privacy and carries significant penalties upon conviction. However, the Crown must still prove that the accused committed the offence with the requisite intent, and the defence may raise arguments such as lawful justification or lack of intent to challenge the charges.

STRATEGY

Section 98(3) of the Criminal Code of Canada provides the legal definition of breaking and entering, which is a serious criminal offense. When dealing with this section, there are several strategic considerations that should be taken into account by both the prosecution and defense. Firstly, it is important to note that the offense of breaking and entering is a hybrid offense, which means that it can be prosecuted as either a summary or an indictable offense, depending on the circumstances of the case. Therefore, both the defense and prosecution must carefully evaluate the strength of their case and consider which method of prosecution will be most effective in achieving their goals. In cases where the prosecution decides to proceed with an indictable offense, they must be prepared to prove beyond a reasonable doubt that the defendant intentionally broke and entered a building or structure with the intent to commit an offense inside. In contrast, if the offense is prosecuted as a summary offense, the burden of proof is lower, and the prosecution only needs to establish the essential elements of the offense on a balance of probabilities. Another strategic consideration when dealing with Section 98(3) is the possibility of raising a defense of lawful excuse. This defense is available if the defendant can show that they had a reasonable excuse for breaking and entering, such as if they were performing a legal duty or acting in self-defense. In cases where this defense is raised, the prosecution must rebut the defense and prove that the defendant did not have a lawful excuse for the offense. In addition to the legal considerations, there are also practical strategic considerations to take into account when dealing with breaking and entering cases. For example, the prosecution may decide to offer a plea bargain to the defendant in exchange for a guilty plea. This strategy may be used to secure a conviction and avoid the cost and uncertainty of a trial. Similarly, the defense may choose to negotiate a plea bargain in order to minimize the potential consequences of a conviction. This strategy may involve agreeing to plead guilty to a less serious offense in exchange for a reduced sentence or other favorable terms. Overall, the strategic considerations when dealing with Section 98(3) of the Criminal Code of Canada are complex and require careful evaluation of the facts and legal issues in each case. Both the prosecution and defense must strategically evaluate the strengths and weaknesses of their case and consider a range of potential options to achieve their goals. By carefully considering these factors, practitioners can build strong cases and achieve successful outcomes for their clients.