Une personne s’introduit par effraction dès qu’une partie de son corps ou une partie d’un instrument qu’elle emploie se trouve à l’intérieur de toute chose qui fait l’objet de l’introduction

R. v. Raymond LeRoy, 2022 NSSC 272

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[198]      In this count Mr. LeRoy is charged that he did break and enter a place, to wit the dwelling house at 16 Barrington Street, Apartment #2, Sydney Mines, with intent to commit an indictable offence therein, contrary to s. 348(1) (a) of the Criminal Code.

[199]      Pursuant to s. 348(3) the word “place” means a dwelling house, or a building or structure other than a dwelling house.  It is not disputed that apartment #2 was the residence of Carolyn Dermody and Edward O’Brien, and that the apartment was their place of dwelling.

[200]      The term “break” is also defined in the Criminal Code to mean (a) to break any part, internal or external, or (b) to open anything that is used or intended to be used to close or to cover an internal or external opening.  (Section 321 (a) and (b))

[201]      The word “enter” is defined in the Criminal Code (s.350(a)) for the purpose of s. 348.  A person “enters” as soon as any part of his body or any part of an instrument that he uses is within anything that is being entered.

[202]      Applying these definitions to the case before me, the evidence is that Mr. LeRoy first entered apartment #2 by kicking the door in at the top of the stairs.  The photos show the “latch” that had been part of the frame, on the ground directly in front, as testified to by Mr. O’Brien and shown in photo 9 of Exhibit #1B.

[203]      I am satisfied the evidence showed that the stair window was shot through, leaving the curtain hanging, and that the bottom window in the door, the lower pane, was shot through by Mr. LeRoy.

[204]      Both Crown witnesses testified that the Accused was shooting through the window, he reached in said Mr. O’Brien.  Ms. Dermody said he had passed the threshold and was standing level to the door.  Even if he had not, as Edward O’Brien maintained, the wads, pellets and barrel of the gun are part of that instrument and clearly broke the windows and entered the apartment.  Sgt. MacLeod confirmed the pellets, wads, and damage that had occurred inside the apartment.

[205]      The mental element for this offence requires proof that Mr. LeRoy intended not only to break in and enter a place, but in doing so intended to commit an indictable offence in the residence of Edward O’Brien and Carolyn Dermody.

[206]      As previously shown, intention is a state of mind, and it is impossible to see inside a person’s mind to determine whether or not they intended to do something.

[207]      Where there is evidence that a person without lawful excuse enters a dwelling house, that evidence is, in the absence of any evidence to the contrary, proof that he entered the dwelling house with intent to commit an indictable offence therein.  (See s. 349(2) pf the Criminal Code)

[208]      This Court has already found on the evidence at trial that Mr. LeRoy did commit the indictable offence of aggravated assault on the date, time and place alleged in the Indictment.

[209]      The Defence maintained it was not Mr. LeRoy and that there was no proof beyond a reasonable doubt that a shotgun was used by the shooter.  I have already made the finding that it was him and that a shotgun was used.

[210]      I further am satisfied the Crown has established that this was a dwelling house, and that the date, time and place of the offence has been proven beyond a reasonable doubt.

[211]      Mr. LeRoy is convicted of the offence of break and enter with intent in Count 6.