Focus On

CRIMINAL CODE OFFENCES - Break and enter a dwelling-house

Monday, February 25, 2019 @ 10:39 AM  


Lexis Advance® Quicklaw®
Appeal by the Crown from the acquittal of the co-accused, Terri-Lynn and Michael Barrett, on charges of breaking and entering a dwelling-house to commit the indictable offence of assault with a weapon. The co-accused were brother and sister. They developed a plan to regain custody of Terri-Lynn's two children from her abusive ex-partner due to concerns over the children's safety. The co-accused and another individual, Mooney, approached the father and he immediately retreated to his house with the children. The three perpetrators forced their way into the home believing the children were in danger. The father brandished a large knife. A struggle ensued, and the father was sprayed with pepper spray by Mooney. Terri-Lynn and Mooney took the children from the home. The trial judge found that both the break and enter and subsequent assaults on the father were justified based on self-defence. Neither co-accused had knowledge or were wilfully blind to the fact that Mooney had armed himself with pepper spray. The co-accused were acquitted. The Crown appealed.

HELD: Appeal dismissed. The trial judge did not err in finding an air of reality to the defence of self-defence. The immediate purpose of the break and enter was for the protection of a child. Once in the home, the father threatened the safety of the co-accused and the children. The trial judge correctly instructed himself and was alive to each element of the defence in finding that the co-accused had both subjective and objectively reasonable grounds for belief that force was being used or threatened against the children. The trial judge did not err in law by failing to find the co-accused guilty as parties to Mooney's assault with the pepper spray, as no such theory of liability was put forward by the Crown at trial. The trial judge was not required to consider offences other than those arising from the assaults, such as kidnapping for instance, as a basis for conviction in connection with the break-in. To the extent that the Crown particularized such offences at trial, no theory to liability was put forward at trial based on alternate offences.

R. v. Barrett, [2019] S.J. No. 9, Saskatchewan Court of Appeal, G.R. Jackson, N.W. Caldwell and R. Leurer JJ.A., January 18, 2019. Digest No. TLD-February252019002