Unenclosed storage yard not a “place”

Mike Novakowski
February 28, 2010
By Mike Novakowski
An open space with a chain preventing vehicles from entering and exiting is not a “place” for the purposes of break and enter, the Alberta Court of Appeal has ruled. In R. v. Ausland, 2010 ABCA 17, two men were observed backing a semi tractor up to a chain between two cement posts. Secured by a padlock, the chain was the only thing controlling access to an unfenced yard used to store trailers. No physical barriers impeded pedestrian access but the yard was patrolled by security guards and there were cameras. The men cut the chain and backed the tractor up to a trailer parked in the lot, connected it and were ready to pull away when police arrived in response to an emergency call.

An open space with a chain preventing vehicles from entering and exiting is not a “place” for the purposes of break and enter, the Alberta Court of Appeal has ruled.

In R. v. Ausland, 2010 ABCA 17, two men were observed backing a semi tractor up to a chain between two cement posts. Secured by a padlock, the chain was the only thing controlling access to an unfenced yard used to store trailers. No physical barriers impeded pedestrian access but the yard was patrolled by security guards and there were cameras. The men cut the chain and backed the tractor up to a trailer parked in the lot, connected it and were ready to pull away when police arrived in response to an emergency call.

Although nothing was removed, Ausland was charged with breaking and entering a place, committing a theft therein and theft over $5,000. At trial in Alberta Provincial Court the judge found the storage yard to be a “place” and convicted him of breaking and entering. He was also found guilty of theft over $5,000 but that charge was stayed under the Kienapple principle.

Ausland appealed to the Alberta Court of Appeal arguing, in part, that he did not break and enter a “place” as defined in section 348(3) of the Criminal Code, which says the term means, among other things, “a building or structure or any part thereof, other than a dwelling house.” This definition required the Crown to prove that the yard was a “structure” within the statutory meaning of “place.”

Although the court accepted that the word “structure” had a broad and liberal interpretation, it concluded the unenclosed parking lot did not meet the definition:

It is apparent from (case law) that the courts, in dealing with the break and enter sections of the Code, have interpreted the word “structure” to include, in certain circumstances, spaces enclosed by a fence. In our view, however, to extend the meaning further to include unenclosed spaces, like the yard in the present case, would go too far and rob the word “structure” of any effective meaning.

At the very least, a structure must be something that can be broken into and entered. In this case, entry to the lot could have been gained by simply walking around the barrier created by the chain… The fact that the yard is patrolled does not convert an open space into a structure (para. 11.)

Thus, the trial judge erred in convicting the accused of breaking and entering by holding that the unenclosed storage yard was a place. However, the offence of theft over $5,000 was established. Even though the trailer wasn’t removed from the yard, the definition of “theft” includes moving something or causing it to move or to be moved, or beginning to cause it to become movable with the intent to steal it.

Ausland was in the course of causing the trailer to become movable. The break, enter and theft conviction was set aside and a conviction for theft was entered.

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