What Are The Potential Defences For Break And Enter?

Factual Innocence: If the Crown is unable to prove the essential elements of the particular offence beyond a reasonable doubt, they will have failed to discharge their burden, and the accused will be acquitted.

Invitation: A defence may be available if the accused can demonstrate he had permission to be on the premises.

Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:

  • the right against unreasonable search and seizure;
  • the right to not be arbitrarily detained;
  • the right to be informed promptly of the reasons for arrest;
  • the right to retain and instruct counsel without delay; and
  • the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings, or evidence from your case being excluded.

Under the Canadian Charter of Rights and Freedoms, Canadian citizens are guaranteed certain rights and freedoms, which can only be limited by law so long as the limit can be demonstrated to be reasonable in a free and democratic society. These rights include:

  • Fundamental Freedoms (freedom of religion, expression, powerful assembly, and freedom of association)
  • Democratic Rights (right to vote)
  • Mobility Rights (right to enter, remain, and move around in Canada)
  • Legal Rights (discussed below)
  • Equality Rights (right to equal treatment under the law and equal protection and benefit of the law without discrimination)
  • Language Rights (right to be able to communicate with government in French and English)
  • Minority Language Education Rights (right to have children educated in their own language)

A Charter application is a motion brought on behalf of the defence alleging a breach or breaches of the accused Charter rights. The issues raised on a Charter application are normally in regard to one"™s legal rights under sections 7 "“ 14 of the Charter:

  • right to Life, Liberty, and Security of the Person
  • freedom from unreasonable search and seizure.
  • freedom from arbitrary detention or imprisonment.
  • right to legal counsel and the guarantee of habeas corpus.
  • rights in criminal and penal matters such as the right to be presumed innocent until proven guilty.
  • right not to be subject to cruel and unusual punishment.
  • rights against self-incrimination.
  • right to an interpreter in a court proceeding.

On a Charter application, there are also submissions as to what the appropriate remedy is, such as a stay of proceedings or having evidence excluded from a trial.

To obtain a Charter remedy, the accused must:

  • lay out a factual foundation;
  • bring the application at the appropriate stage of litigation; and
  • demonstrate that, on a balance of probabilities, there has been a violation of his or her Charter right(s).


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