Client locked out of his own residence – he Breaks and Enters, did he do a B&E and/or Mischief (damage to property)?

Client’s wife locked him out of home. He broke in and ended up getting a criminal charge. Did he commit a criminal offence?

Hajek, [2009] O.J. No. 837 (CJ, Renaud J):
Trial of the accused Hajek for mischief. Hajek was charged with forcing open and breaking the door to the home he shared with his estranged wife. The accused and the complainant were having marital difficulties and she had told him to leave the house. The complainant changed the locks on the house; the accused repeatedly asked for a key, which she refused. On the day of the incident the accused wanted into the home while the complainant was not there to use the computer for business. He could not get into the house and broke down the door. The accused argued that he thought he had a right to use force to enter the home because he lived there. He argued that he acted with legal justification. The complainant did not have an order of exclusive possession with respect to the house.

HELD: Accused acquitted. The accused had a genuine belief in a colour of right to be in the home; accordingly, he lacked the mens rea where he thought he could use force to enter the home. The complainant did not have an order of exclusive possession of the home at the time. However, Hajek would be bound by a recognizance not to contact the complainant.


Contra, in context of mischief, Linardatos, [2005] O.J. No. 779 (CJ, Wright J):
This was the trial of the accused. The accused had been charged with wilful damage to property contrary to the Criminal Code. The accused and his wife were on acrimonious terms. The wife submitted that the accused had slashed the tires on her vehicle. She called the police. They arrived on the scene. The officer noted that all the tires had been slashed. The accused denied slashing the tires. He submitted his wife had fabricated the story. In the alternative he submitted that he had legal justification to slash the tires as the property was his. The Crown submitted into evidence the tape recorded emergency call made by the wife and her interview with the police. The wife’s testimony was consistent. She was credible. The accused said that he bought the car, however, he was not aware of who the registered owner of the vehicle was. He admitted he had bought the car for the use of his wife and children.

HELD: The accused was found guilty. The evidence of the wife was credible and was accepted by the court. Her evidence was corroborated by the other witnesses and the telephone recording. Further, the accused did not have legal justification or excuse to destroy or damage the tires. Although the accused had paid for the car he could not say who owned the car and tires. His evidence was that he had bought the car for his wife and children. He had only a partial interest in the car. He therefore was unable to make out the defence of colour of right to excuse him from liability under the Code.

I also note – Power, [1995] N.S.J. No. 141:
Held: Appellant not properly convicted (See R. v. Surette (1993) 82 C.C.C. (3d) (N.S.C.A.)). The owner is entitled to damage property which he owns so long as there is no fraudulent intent.