Picture the charge and you probably see a masked stranger with a crowbar at a darkened house. Real files in Peel often look different. A former roommate goes back for a TV that he says is his. A teenager climbs through a basement window of a vacant townhouse. A man pushes open the back door of a closed shop in an industrial unit off Airport Road and walks out with a pallet of tools. All may face the same section of the Criminal Code, though the consequences vary sharply.
Break and enter is treated as a serious property offence because it invades a place that people expect to be secure. When that place is someone’s home, the law treats it as one of the more serious non-violent charges an accused person can face, and bail and sentencing get harder quickly.
Please treat what follows as general information about Ontario criminal law. It is not legal advice, and your own case will depend on evidence that only a lawyer who has reviewed your disclosure can assess.
What “Breaking” and “Entering” Really Mean
Both words have legal meanings that are much broader than their everyday sense.
To “break” under section 321 means to break any part, internal or external, of something, or to open anything used or intended to close or cover an opening. There is no need for damage. Pushing open a closed but unlocked door, sliding a window or lifting a garage door can all count.
To “enter” under section 350 happens as soon as any part of your body, or part of an instrument you are using, goes inside. Reaching an arm through an open service window could be enough. The same section also deems a person to have broken and entered if they got in by a threat, a trick or collusion with someone inside, or if they entered without lawful justification or excuse through a permanent or temporary opening.
So, the common belief that “the door wasn’t locked, so it isn’t B and E” is wrong. Whether a door was locked may affect the story and sentencing, but it does not end the analysis.
The Three Ways to Commit the Offence
Section 348(1) covers three situations:
- Breaking and entering a place with intent to commit an indictable offence inside.
- Breaking and entering a place and committing an indictable offence inside.
- Breaking out of a place after committing an indictable offence inside, or after going in with the intent to commit one.
“Indictable offence” usually means theft, but it could also be mischief, assault or something else. “Place” is wide too. It covers a dwelling-house and any other building or structure, a railway vehicle, a vessel, an aircraft or a trailer, as well as a pen or enclosure for fur-bearing animals. A transport trailer parked in a yard is a “place.” In a city with as much trucking and warehousing as Brampton, that is not a rare fact pattern.
Why a Home Is Treated So Differently
The maximum penalty depends on what kind of place was entered.
| Type of place | How it can be prosecuted | Maximum |
|---|---|---|
| Dwelling-house | Indictable only | Life imprisonment |
| Any other place | Hybrid | 10 years on indictment; summary conviction penalties otherwise |
A “dwelling-house” is any building or structure, or part of one, kept or occupied as a permanent or temporary residence. It includes attached structures connected by a doorway or covered and enclosed passageway, such as an attached garage, and a mobile unit used as a residence. A basement apartment is a dwelling. So is a house being lived in even though the owners are overseas for a month. Whether a detached garage or a vacant, unfinished house qualifies can be a real legal question.
Life imprisonment is a theoretical ceiling, and it does not describe what usually happens. But the classification matters for many practical reasons. A dwelling charge means no summary option for the Crown, it opens the door to a preliminary inquiry on request, and it affects bail, immigration and the sentence range.
There is also an aggravating factor in section 348.1. If the home was occupied, the accused knew or was reckless about that, and violence or threats were used, the court must treat this as aggravating. These are the so-called home invasions, and they usually bring penitentiary-range submissions from the Crown.
The Presumption About Your Intent
Normally, the Crown must prove what was in your mind. Section 348(2) gives it some help here: evidence that you broke and entered a place, or attempted to, is proof that you intended to commit an indictable offence inside, unless there is evidence to the contrary.
This does not require you to prove your innocence. “Evidence to the contrary” only has to raise a reasonable doubt about intent. It can come from your own testimony, from other witnesses, or from the circumstances. For example, in a hypothetical case, someone who was badly intoxicated and went to the wrong unit in a row of identical townhouses, and who then fell asleep on the couch, may have evidence pointing to a very different purpose. But the risk is real. If the Crown proves the break and entry and nothing contradicts the presumption, the court can convict on that basis.
A closely related offence, under section 349, covers being unlawfully in a dwelling-house with intent to commit an indictable offence, and it carries a maximum of 10 years. No breaking is required for it. It has its own presumption too. Section 351 separately covers possession of break-in tools, and it can apply even if no one got inside.
How These Cases Are Usually Proved
Disclosure in a break and enter file is often built around a few types of evidence. Each has weak spots.
Surveillance and doorbell video. Modern subdivisions are full of cameras. Clear footage can be powerful, but grainy clips at night, partial views and identifications by officers who think they recognize someone can all be challenged. Identification evidence is known to be prone to honest mistakes.
Fingerprints and DNA. A fingerprint on a pried window might be damning, or it might mean nothing if you once worked at the property or visited the home. The question becomes how and when it got there. Forensic evidence from a portable or movable object can be especially weak on timing.
Freshly stolen property. If you are found with goods soon after they were taken, a court may infer you were involved in the theft, or even in the break-in, unless an explanation is given that might reasonably be true. This is known as the doctrine of recent possession, and it can sometimes be applied with surprising force. Do not offer an explanation to police on the spot. Save it for your lawyer.
Phone location, messages and vehicle data. Cell-tower data shows only a general area, and licence plate readers show a vehicle and not its driver. A warrant may also be required for some of this information, which can create Charter issues.
Co-accused. If several people are involved, one may become a witness against the others, and that testimony often needs careful scrutiny.
Defences and Disputed Facts
There is no script for defending this charge, but these issues are often worth a closer look:
- Identity. Was it really you in the footage? Could anyone place you there?
- Permission or a right to be there. A tenant, a family member with a key, a contractor who still had access, or someone invited inside may not be breaking and entering at all. A former partner’s situation can be more difficult, and the fact that you once lived in a home does not necessarily give you continued permission.
- Colour of right. If you honestly believed you had a legal claim to property you went in to take, such as your own belongings left behind, that may undermine the required fraudulent intent, even if the belief later proves to be mistaken. It is fact-sensitive and does not make it safe to go back and collect your things. Ask a lawyer or get a police escort.
- No intent. Going in to sleep, to get warm, or to escape danger may support a lesser finding, such as trespass under Ontario’s Trespass to Property Act, which is a provincial offence.
- An unlawful search or arrest. Evidence obtained through a Charter breach may be excluded under section 24(2), depending on the seriousness and the impact on your rights.
Bail and the First Few Weeks
Whether you are released from the police station or held for a bail hearing often depends on your record and on whether there is a risk you will reoffend. For a break and enter of a home, section 515(6) places the onus on the accused to show why detention is not justified, and a clear plan is required. Courts may also consider terms such as curfews, geographic limits and a ban on carrying break-in instruments.
If you are held, your family should prepare quickly. Your lawyer will want to know where you can live, who could supervise you, and whether you have a job or school to attend. A proposed surety should be someone who can actually watch you. Attendance at bail hearings happens at the Ontario Court of Justice at 7755 Hurontario Street, and it helps to have your people ready early.
If you were released on a promise to appear in court, read the fingerprint date too. A missed date is a separate charge. And stay well away from the location and from the people you are told not to contact.
What Sentencing Can Look Like
A sentence depends on the place, the planning, the value taken, your record, your role and the impact on those affected. Victim impact statements in home cases are often compelling, since people may no longer feel safe in their own homes. Under section 718.2, courts must consider listed aggravating circumstances. A break and enter of a residence is usually dealt with more sternly than a commercial one, and repeat offenders should expect denunciation and deterrence to feature heavily.
Possible results range across the spectrum:
- Discharge. Section 730 rules out a discharge for offences carrying a maximum of 14 years or life, so this is not available for a home break-in. It may be available for a commercial break-in, particularly for a young first-time offender.
- Suspended sentence with probation, or a fine. These are possible in lower-end non-dwelling cases.
- Conditional sentence. A conditional sentence is possible in law where a sentence is under two years and the criteria in section 742.1 are met, including that it would not endanger the community.
- Jail. This is a real risk in dwelling cases, especially for repeat offenders. A penitentiary term is possible where the facts are serious.
A court can also order restitution under section 738 for damage or stolen goods. Victims or insurers can pursue a civil claim on top of that. Paying back or fixing the damage before sentence, where realistic, can sometimes be a useful mitigating step, but you should discuss this with counsel before you contact anyone.
Young People, Relatives and Longer-Term Effects
Youth charged with break and enter fall under the Youth Criminal Justice Act, which has its own measures, including extrajudicial sanctions in appropriate cases and different rules for records. Parents who get a call from police should arrange for a lawyer before their son or daughter gives a statement. Young people have enhanced rights around questioning, including having a lawyer and a parent or another adult present.
If you are a homeowner who has been broken into and the accused turns out to be a relative, it is worth knowing that you do not control whether the charge goes ahead. You can tell police and the Crown your wishes, and the Crown will consider them, but the decision is theirs.
A conviction for breaking into a home has a maximum of life in prison, so for immigration purposes it counts as serious criminality, whatever the actual sentence. Permanent residents and people on temporary status need immigration advice alongside criminal advice before any plea. Employers doing record checks are likely to take this kind of charge seriously, particularly in trades where workers enter clients’ homes, and travel to the United States may become more difficult.
Keep a copy of every paper you were given. Do not go back to the property, even to apologize or collect your things. Do not talk about the case on social media or by text. Write down who you were with and where you were on the relevant dates, and share that only with your lawyer.
More information is available on our criminal law page, and you can contact the office to set up a meeting. If a related mischief allegation is also part of your case, our page on mischief charges may help too. No one can promise a particular result, but a careful reading of how the Crown plans to prove entry, intent and identity is where a sound defence starts.