Johnson v. The Queen, [1977] 2 SCR 646

Supreme Court of Canada

Johnson v. The Queen, [1977] 2 S.C.R. 646

Date: 1977-03-22

David Andrew Johnson Appellant;

and

Her Majesty The Queen Respondent.

1977: March 2, 22.

Present: Laskin C.J. and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpré JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA

Criminal law—Breaking and entering—Actual and constructive—Meaning and scope of s. 308(b)(ii) of the Criminal Code—Distinctions between ss. 306 and 307.

The accused was convicted of breaking and entering a place and committing theft therein. The place was a dwelling house under construction and the accused entered through a doorway from a carport where no door had been installed and no barrier was in place. This conviction was affirmed on appeal.

Held: The appeal should be dismissed.

At common law constructive breaking took place when entry was effected through an aperture, such as a chimney, that was permanently open. This notional breaking was introduced into the Criminal Code of Canada in 1892, but the notion was substantially altered and extended by 1953-54, c. 51, s. 294(b) (now s. 308(b)) to include any entry without lawful justification through a permanent or temporary opening. The plain words of s. 308 must be given effect according to their ordinary meaning. Parliament has, for the purpose of the Criminal Code given the word “break” an artificial construction that would not otherwise prevail and it is within Parliamentary competence to do so. The argument that the distinction between ss. 306 and 307 of the Code would be extinguished if entry through an open door constituted breaking does not take into account the differences between those two sections. It is up to the prosecutor to decide in the circumstances of any particular case which charge is appropriate.

R. v. Sutherland (1967), 58 W.W.R. 441, applied; R. v. Bargimis, [1970] 4 C.C.C. 358, referred to; R. v. Jewell (1974), 28 C.R.N.S. 331, overruled.

APPEAL from a judgment of the Court of Appeal for British Columbia[1] affirming a judg-

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ment of McDonald C.C.J. Appeal dismissed.

S. Goldberg, for the appellant.

A. Stewart, for the respondent.

The judgment of the Court was delivered by

DICKSON J.—The question raised in this appeal is not novel. It was current in the time of Lord Hale, in the eighteenth century. The question is whether an intruder can be convicted of breaking and entering premises without actual breaking. Hale (1 P.C. 551), writing in 1778, delineates two forms of breaking:

(1) In law, and thus every one that enters into another’s house against his will, or to commit a felony, tho the doors be open, does in law break the house; (2) There is a breaking in fact, an actual force upon the house, as by opening a door, breaking a window, etc.

Today, (1) would be regarded as a constructive breaking and (2) as an actual breaking. Hale recounts how an earlier jurist had held breaking in law sufficient to constitute burglary if a man entered the house by the doors open in the night and stole goods, but, Hale adds: “yet the law is, that a bare breaking in law, viz. an entry by the doors and windows open is not sufficient to make burglary without an actual breaking”. There was an exception: if a thief went down a chimney to steal, that was a breaking and entering. The distinction between actual and constructive breaking endures to this day.

At common law an actual breaking occurred whenever any part of the building or of its closed fastenings was displaced as, for example, by drawing a bolt, turning a key or lifting a latch: Kenny’s Outlines of Criminal Law, 17th ed., para. 311. The opening of a closed but unlocked bedroom window was a breaking while the further opening of a window already partly opened was not. The reason suggested for this precious distinction was that when a householder left a window or a door partly open he offered a visible invitation to enter.

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Constructive breaking, in the absence of actual breaking, extended at common law to cases in which the intruder entered the premises by some aperture which, by necessity, was left permanently open, such as a chimney. In 1892, that concept found its way into the Canadian Criminal Code (c. 29, s. 407(b)(ii)). It was repeated in the Codes of 1906 (R.S.C. 1906, c. 146, s. 340) and 1927 (R.S.C. 1927, c. 36, s. 340(2)) in these words:

Every one who obtains entrance into any building by any threat or artifice used for that purpose, or by collusion with any person in the building, or who enters any chimney or other aperture of the building permanently left open for any necessary purpose, shall be deemed to have broken and entered that building.

The wording was substantially altered and extended by 1953-54, c. 51, s. 294(b) and now appears as s. 308(b) reading:

308. For the purpose of sections 306 and 307…

(b) a person shall be deemed to have broken and entered if

(i) he obtained entrance by a threat or artifice or by collusion with a person within, or

(ii) he entered without lawful justification or excuse, the proof of which lies upon him, by a permanent or temporary opening.

Central to this appeal is the scope to be given to s. 308(b)(ii).

The definition of “break” is found in s. 282 of the Code reading:

282. In this Part “break” means

(a) to break any part, internal or external, or

(b) to open any thing that is used or intended to be used to close or to cover an internal or external opening;

The facts in the present case are unexceptional. The accused entered a partly constructed unoccupied dwelling-house at 3.30 a.m. through an open doorway leading into the house from a carport. The door had not yet been installed. The owner, as a temporary measure, had nailed a sheet of plywood over the opening, but it would appear

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that some one had removed it as it was lying on the ground at the time of entry by the accused and a companion. The accused was convicted on a charge that he did unlawfully break and enter a place, to wit, a dwelling-house under construction, and did commit the indictable offence of theft therein. It was common ground that the building was, by definition, a “place” but that it was not a dwelling-house. There was no suggestion that the accused had any lawful justification or excuse for entering the building. In dismissing an appeal by the accused the British Columbia Court of Appeal, speaking through Mr. Justice McFarlane, held that the language of s. 308(b)(ii) was clear and unambiguous, and sufficient to support the conviction. The reasoning of the same Court in the earlier case of R. v. Sutherland[2], was applied rather than that of the Ontario Court of Appeal in R. v. Jewell[3].

In Sutherland’s case the accused was charged with unlawfully breaking and entering a garage and committing an indictable offence therein. The garage was enclosed on three sides and open at one end for the entrance of a car. It was through this entrance that the accused entered to steal gasoline. Mr. Justice McFarlane delivered the judgment of the Court. R. v. Sutherland was decided on the narrow ground that the open end of a garage would be described as an entrance and not an opening.

In the reasons for judgment delivered in the case at bar, Mr. Justice McFarlane had this to say respecting Sutherland’s case:

In my opinion the basis of the decision in Regina v. Sutherland was the interpretation of the words “permanent or temporary opening” in section 308(b)(ii). I think it is clearly implicit in the judgment that if the entrance to the garage had been held to be a permanent or temporary opening within the meaning of the statute Sutherland’s conviction would have been upheld although the breaking was constructive only and not actual. It was decided that subsection 308(b)(ii) did not apply because the entry was not by a permanent or temporary opening.

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In Regina v. Bargimis[4], the accused induced the assistant night manager to leave open the doors of a restaurant. It was understood that the accused would enter the restaurant and through it reach an adjacent drug store for the purpose of stealing a safe. The store manager advised his employer and the police were notified. The accused on a Sunday evening entered and went downstairs and through another door into the restaurant, where he was arrested. Chief Justice Gale, delivering the judgment of the Ontario Court of Appeal, dismissing an appeal had this to say, p. 361:

In our view, the accused entered Zumburger’s “without lawful justification or excuse… by a permanent or temporary opening.” As the subparagraph qualifies the term “opening” by using both “permanent” and “temporary,” it matters not, as it seems to us, whether one considers the opening of the door that was ajar in the laneway or the opening of the door into Zumburger’s as the opening through which the accused entered without lawful justification or excuse. Mr. Levy relied upon the case of R. v. Sutherland, [1967] 2 C.C.C. 84, 50 C.R. 197, 58 W.W.R. 441, a decision of the Court of Appeal of British Columbia. If the facts were the same we would, of course, be very much inclined to follow the Sutherland judgment. However, in our view, that case does not in any sense inhibit us in upholding the conviction here. In the Sutherland case the accused entered a three-sided garage at the point where there was no wall and the Court of Appeal of British Columbia held that where there was no wall or other structure surrounding an open space, the “opening” was not regarded as coming within the subparagraph. In our view that is quite correct. In other words, there has to be something in which an opening exists and in the Sutherland case there was nothing to sustain the opening. Here, of course, both doorways constitute openings, the one at the lane in the outside wall of the building and the one into Zumburger’s basement in an inside wall of the building. Accordingly, the provisions of para. (b)(ii) cover the situation precisely. In this connection, reference should also be had to the case of R. v. Corkum (1969), 7 C.R.N.S. 61, where McLellan, Co. Ct. J. of the Nova Scotia County Court also distinguished the situation before him from that which prevailed in the Sutherland case.

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In Regina v. Bargimis doorways were held to constitute openings. The Court relied upon sub‑para. (b)(ii) of s. 308 because of the argument advanced by counsel for the accused that subpara. (b)(i) did not apply. The argument was based on the submission that there was no collusion because the employee was merely pretending to agree to a collusive agreement and was not in fact doing so.

I come now to R. v. Jewell, supra. The accused in that case entered an unoccupied dilapidated dwelling-house through a screen door and an inner door, both of which were open wide enough to permit the accused to enter without further opening the doors. The Court held that entry through the open door in the circumstances of the case did not constitute a breaking of the premises. The judgment notes that at common law and under s. 340 (2) (the section referring to chimneys or other apertures permanently left open) entry through a temporary opening such as a hole in the roof or a wall in the building did not constitute a breaking of the building; nor did further opening a door or window which was already open. With respect, I agree. It is then stated that s. 294 (now s. 308) of the Code had effected a change in the Canadian law, and the following note to s. 294 from Martin’s Criminal Code (1955), p. 517, was quoted and relied upon:

This comes from the former s. 340, altered by addition of the words “or temporary” in clause (b). The purpose of the addition is to meet decisions that the raising a window that was partly open did not constitute a breaking: R. v. Burns (1903), 7 C.C.C. 95; R. v. Miller (1948), 91 C.C.C. 270; R. v. Dolbec (1950), 98 C.C.C. 52.

The change may well have been prompted by decisions which had held that raising a partly opened window did not constitute a breaking, as the learned author of Martins Criminal Code suggests, but it is clear that the language which Parliament used in changing the law embraced far more than partly opened windows. It broadened the reference to permanent apertures by removing the requirement that they be “left open for any necessary purpose.” It extended constructive breaking to include entry by any temporary open-

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ing. In addition, the burden of proof that he had lawful justification or excuse for entry was placed upon the person who enters.

If I understand the judgment in R. v. Jewell correctly, it would have the effect of limiting s. 308(b)(ii) to those situations in which a would-be intruder found a door or window partly ajar and opened it further in order to gain entry. A partly opened door would be an opening but a fully open door would not be so regarded. There is nothing in the language of the section to connote such a result. A distinction of the kind suggested would differentiate between doors open wide enough to permit an intruder to slip around them and those so narrowly ajar as to require a push in order to enter; it would also distinguish, as one of my colleagues was moved to observe during argument, between fat burglars and thin ones. Such an interpretation of the section would also do away with constructive entry through chimneys, perhaps not a daily occurrence but conceptually imbedded in common law and statute for centuries.

Parliament has extended the limits of constructive breaking. Parliament, for the purpose of the Criminal Code, has given the word “break” an artificial construction that would not otherwise prevail. The notion that a person has broken and entered if he obtains entrance by threat or artifice or collusion is equally a fiction, long recognized at common law and now codified in s. 308(b)(i). It is within Parliamentary competence to extend constructive entry from “any chimney or other aperture permanently left open for any necessary purpose,” as stated in s. 304(2) and in the common law, to “a permanent or temporary opening.” These are plain words which must be given effect according to their ordinary meaning. There are many other “deeming” sections in the Criminal Code. Some of them were noted in the judgment of Mr. Justice Ritchie in Brodie v. The Queen[5]. This Court had occasion to say in R. v. Maroney[6], at p. 310:

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We are not concerned with larceny here but with theft by conversion as defined by the Criminal Code of Canada. Smith and Hogan, Criminal Law, 3rd ed., p. 396, point out that the 1916 Larceny Act was often construed on the tacit assumption that there was no intention to alter the previous law and the earlier case law had lost little or no authority. We are concerned here with a Code. We start with the Code and not with the previous state of the law for the purpose of enquiring whether the Code has made any change. On the plain meaning of our Code the facts of this case show the commission of an indictable offence—theft.

The argument was advanced that the distinction between ss. 306 and 307 of the Code would be extinguished if entry through an open door constituted breaking. There can be no doubt that the effect of the amendment was to narrow the gap between the two sections. They overlap but some differences remain. Section 307 is concerned only with dwelling-houses, s. 306 with “places” which, in addition to dwellings, includes other buildings or structures, railway vehicles, vessels, aircraft and trailers. Section 307 speaks also of a person who is “in” a dwelling-house with intent. Section 306 does not, though it provides for the situation in which a person “breaks out” of a place after committing an indictable offence therein. Thus, certain factual situations will call for a charge under s. 306, others under s. 307. In some cases of dwelling-house entry the prosecutor may have the alternative of charging under one section or the other, but this is not uncommon. A stabbing, for example, may give rise to a nice question of whether to charge attempted murder, or causing bodily harm with intent to maim, or some lesser charge. It remains for the prosecutor in the circumstances of the particular case to decide which charge is appropriate.

I would dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: S. Goldberg, Vancouver.

Solicitor for the respondent: A.M. Stewart, Vancouver.