Criminal Code of Canada - section 72(1.1)

section 72(1.1)

INTRODUCTION AND BRIEF DESCRIPTION

This section states that it doesnt matter if a person is entitled to enter or intends to take possession of real property for the purposes of subsection (1).

SECTION WORDING

72(1.1) For the purposes of subsection (1), it is immaterial whether or not a person is entitled to enter the real property or whether or not that person has any intention of taking possession of the real property.

EXPLANATION

Section 72(1.1) of the Criminal Code of Canada is a provision that governs the laws on breaking and entering, specifically the concept of "entering" in the context of real property. This provision essentially states that when it comes to breaching real property, it is irrelevant whether or not a person has any legal right or entitlement to enter the property. Therefore, a person can commit the offense of breaking and entering, even if they have legal access to the property or no intention of taking possession of it. The rationale behind this provision is to ensure that property rights are protected at all times. It is recognized that even if a person has the legal right to access a property, that does not give them the right to enter a property in an unlawful manner. This provision clarifies that the act of entering someone's property without their permission is a criminal offense, regardless of whether the person has a lawful purpose or not. Section 72(1.1) is also intended to deter individuals from committing the offense of breaking and entering by clarifying that the law applies to all persons equally, regardless of their intentions or legal entitlements. Ultimately, this provision serves to uphold the integrity and security of private property, and protect the rights of property owners. Any person who violates this section of the Criminal Code of Canada may face criminal charges, including fines and prison sentences, depending on the severity of the crime.

COMMENTARY

Section 72(1.1) of the Criminal Code of Canada is a provision that specifies the circumstances under which a person may be charged with break and enter. The provision states that it is immaterial whether or not a person is entitled to enter the real property or has any intention of taking possession of the property. This provision has significant implications for individuals who are accused of breaking and entering, as it expands the scope of conduct that can be considered criminal. The term "break and enter" refers to the act of forcibly entering or attempting to enter a dwelling or other building with the intent to commit an indictable offence. This offence is often associated with criminal activity, such as theft, vandalism, or assault. Section 72(1.1) of the Criminal Code makes it clear that a person can be charged with break and enter even if they are not entitled to enter the property or do not intend to commit a crime. This means that a person who enters a property without permission, even if their intentions are innocent, can be charged with break and enter. The provision of section 72(1.1) of the Criminal Code expands the definition of break and enter to encompass a wider range of conduct. It recognizes that the act of entering a property without permission is itself a violation of the law, regardless of the offender's intentions. This expansion of the scope of break and enter is significant, as it provides a greater level of protection to property owners and residents. Section 72(1.1) also creates a degree of uncertainty for individuals who find themselves in situations where they have entered a property without permission. As the provision makes it immaterial whether or not the person had any intention of taking possession of the property, individuals may face serious criminal charges even if their actions were innocent or accidental. This uncertainty can lead to a chilling effect on legitimate activities, such as investigators or journalists who may inadvertently enter a property in the course of their work. Furthermore, the provision of section 72(1.1) highlights the importance of distinguishing between legitimate entry and unlawful entry. The law recognizes that there are circumstances where individuals may be entitled to enter a property, such as delivery personnel or emergency responders. However, it is up to property owners and law enforcement officials to determine whether an individual's entry was lawful or unlawful. In summary, section 72(1.1) of the Criminal Code of Canada expands the definition of break and enter to include the act of entering a property without permission, regardless of the offender's intentions. While this provision provides greater protection to property owners and residents, it also creates uncertainty for individuals who may inadvertently enter a property without realizing they are committing a crime. As such, it is essential to distinguish between lawful and unlawful entry to ensure that innocent individuals are not unjustly charged with break and enter.

STRATEGY

Section 72(1.1) of the Criminal Code of Canada deals with criminal trespassing offences. It states that a person commits an offence if they enter a property without lawful authority or permission. This section does not distinguish between public and private property, and it is immaterial whether the individual entered for the purpose of taking possession or not. For criminal defence lawyers, strategic considerations when dealing with this section of the Criminal Code of Canada includes several factors. One of the first considerations is the evidence supporting the charge. It is vital to carefully review the evidence to look for gaps, inconsistencies, and areas that can be challenged. This can include the manner in which the accused entered the property, the level of control the property owner had over the property, and any evidence that the accused had permission to be on the property. Another crucial strategic consideration is to file a Charter application if the evidence shows that there was illegal search and seizure. If the police entered the property without a warrant, this could be a Charter violation that could result in the exclusion of evidence. This strategy could result in the charges being dropped or reduced. Another strategy that could be employed by criminal defence lawyers involves attacking the mens rea component of the offence which requires that the accused had the specific intention of entering the property without permission. A strong argument could be made that the accused did not have the requisite intent if they thought they had permission to be on the property, or if the ownership status of the property was unclear. Several weaknesses may exist in the Crown's evidence, including discrepancies in witness testimony. The defence lawyer could also argue that the property owner consented to the accused's presence on the property or that they believed the property was abandoned. Evidence that significant inconvenience or harm did not occur could also be vital in successfully defending someone charged under section 72(1.1). In conclusion, criminal defence lawyers have considerable strategic considerations when dealing with section 72(1.1) of the Criminal Code of Canada. Examining the evidence with a critical eye, challenging illegal search and seizure, and attacking the mens rea requirement are all crucial strategies that could be employed to defend those charged under this section. By doing so, it is possible to navigate the criminal justice system successfully and secure a positive outcome for those charged with criminal trespassing.