Break and Enter to Steal Firearm (s. 98(4)) Charges in Canada: Offences, Defences, Punishments

Break and enter to steal firearms is covered under s. 98(4) of the Criminal Code, found in Part III. Part III covers “Firearms and Other Weapons.”

A break and enter to steal firearms charge occurs when one breaks in or out of a place and steals a firearm. In terms of breaking in, this offence occurs when one breaks and enters into a place either to steal a firearm intentionally, or by mere chance of coming upon one in the place. In terms of breaking out of a place, this offence can occur either after one steals a firearm from the place, or when one enters a place with intent to steal a firearm in it. Break and enter to steal firearms is an indictable offence.

Break and enter are both defined by the Criminal Code. Break is defined in s. 321 as to break any part internal or external, or to open any thing that covers an internal or external opening. Enter is defined in section 98(3) as occurring when a part of a person’s body enters a thing.  This section further goes on to explain that a person breaks and enters where they 1) achieve entrance through a threat of an artifice or collusion with a person within, or 2) when one enters something without lawful justification or excuse by permanent or temporary opening. Further, place is defined in s. 98(2) as any building or structure and any motor vehicle, vessel, aircraft, railway vehicle, container or trailer.

Examples

Some examples of a break and enter to steal firearms charge may include the following:

• A person breaks into a gun shop for the purpose of stealing a firearm;
• A person breaks into a garage and steals a firearm they find;
• A person breaks out of a police station and steals a firearm.

Defences

The defences available for a break and enter to steal firearms charge are entirely dependent on the facts of your case.

However, some defences to a break and enter to steal firearms charge may include:

• The accused did not break and enter;
• The accused did not break and enter into a place;
• The accused did not steal a firearm or intend to steal a firearm;
• The accused was wrongly identified; and
• The accused’s Charter rights were violated.

Punishments

A break and enter to steal firearm charge is a indictable offence which entails a maximum punishment as follows:

• Life imprisonment.

There are no mandatory minimum penalties for this offence. A break and enter to steal firearms charge can also entail severe consequences for current and future employment opportunities and immigration status.

Overview of the Offence 

According to s. 98(4) of the Criminal Code:

The Guilty Act (Actus Reus)

The actus reus for a break and enter to steal firearms charge under s.98(4) is established by proof, beyond a reasonable doubt of the following:

• The accused breaks and enters;
• The thing broken and entered into is a place; and
• A firearm was stolen OR intended to be stolen

OR

• The accused breaks out
• The thing broken and entered out of is a place; and
• A firearm was stolen OR intended to be stolen

The Guilty Mind (Mens Rea)

The mens rea for a break and enter to steal firearms charge include proving, beyond a reasonable doubt, that:

• The accused knowingly broke and entered; AND/OR
• The accused intended to steal a firearm.

Defences

How to Beat a Break and Enter to Steal Firearm Charge?

Every case is different. The availability and strength of any defence depend entirely on the specific facts of your case. The strength of any available defence rests on the evidence against you and the precise details of the allegations. However, the following are some common defences that may be used when fighting a break and enter to steal firearm charge.

No Break and Enter

One of the essential elements of the offence is breaking and entering, or breaking out of a place, which are defined in the Criminal Code. If one does not break into or out of a place, they would fail to meet this element of the offence. This was argued in R v Masich, in which it was stated that accused was invited into a residence, instead of breaking into it.

Not a Place

Another defence could be that the offence did not occur at a place. The offence occurring at a place is one of the essential elements of the offence, and is given a broad definition to include houses, buildings, and vehicles. However, if a firearm was stolen from another location, this element of the offence may not be able to be met.

No Firearm

Another possible defence could be that no firearms were stolen or were intended to be stolen. This offence adds an additional element to a break and enter, as it specifically requires that a firearm was either stolen, or that the accused broke in for the purpose of stealing the firearm. Thus, if you can prove a firearm was not stolen or that you never intended to steal a firearm, this element of the offence may not be met.

Identity

Depending on the circumstances of your case, a possible defence to a break and enter to steal firearms charge may be to raise an identity defence. In this case, for this defence to be raised successfully, you will have to prove that you were not the person who engaged is misconduct. R v Ertmoed attempted to apply this defence, as the complainant could not properly identify the accused.

Any Applicable Charter Defences

The Charter sets out your rights and freedoms before and after your arrest. If the police fail to abide by these rights deliberately or inadvertently, it could aid in your defence. If any of your Charter rights have been violated before or after your arrest, you may be able to have some or all of the evidence that the Crown is relying on to secure a conviction excluded under s. 24(2) of the Charter.

Punishments

The Criminal Code provides for a possible maximum term of life imprisonment for those convicted of a break and enter to steal firearms charge. No mandatory minimum sentence is provided.

Persons found guilty of break and enter to steal firearms are eligible for sentencing entailing a discharge, suspended sentence, stand-alone fine, custody, custody with a fine or probation or a conditional sentence order.

Frequently Asked Questions  

Can you go to jail for break and enter to steal firearm?

If you are found guilty of break and enter to steal firearms, you can go to jail. This is an indictable offence with the maximum sentence being life imprisonment. Therefore, there is a possibility that you can go to jail for a break and enter to steal firearms charge.

What is the maximum penalty for break and enter to steal firearm?

The maximum penalty for a break and enter to steal firearms charge is life imprisonment. This is an indictable charge with the maximum sentence outlined in the Criminal Code.

Is break and enter to steal firearm an indictable offence?

Break and enter to steal firearms is an indictable offence. This means that the Crown cannot choose to proceed summarily, or by indictment. When proceeding by indictment, a break and enter to steal fierarms charge carries a maximum sentence of life imprisonment.

Published Decisions  

R v Ertmoed, 2015 BCSC 2552

The accused and at least one other individual were alleged to have broken into a house in Prince George and have stolen a number of items from the residence, including firearms. The major issue in this case was regarding identity, as the complainant in the residence could not identify the perpetrators. Though DNA evidence eventually linked the accused to the crime scene, this case points out the importance of identification for being found liable for this offence.

You can read the full decision here.

R v Masich, 2022 BCPC 59

A break and enter occurred and several items, including firearms, were stolen. No one was home during the incident, so the case was based entirely on DNA and circumstantial evidence. The defence argued that the accused was invited into the house by another man had invited him into the house. Further, the accused denied stealing guns. The defence’s witness, who claimed also to be invited to the house, was ultimately found to be unreliable and uncredible. However, this case outlines how those who do not break and enter may fail to meet one of the essential elements of the offence.

You can read the full decision here

Contact Us

If you have been charged with a criminal offence, visit our location pages to contact our team.

• Calgary Criminal Defence Lawyers
• Toronto Criminal Defence Lawyers
• Victoria Criminal Defence Lawyers
• Saskatchewan Criminal Defence Lawyers