Break and Enter Charges in Ontario

What Is Break and Enter Under Canadian Law?

Section 348 of the Criminal Code identifies several forms of break and enter.

A person may be charged where the Crown alleges that the person:

• Broke and entered a place intending to commit an indictable offence inside;
• Broke and entered a place and committed an indictable offence inside; or
• Broke out of a place after committing an indictable offence or after entering with the intention of committing one.

The alleged offence inside the place is often theft, but section 348 is not limited to theft. Depending on the circumstances, the Crown may allege an intention to commit assault, mischief, robbery, fraud or another indictable offence.

The prosecution must prove the specific form of break and enter alleged.

What Does “Breaking” Mean?

“Breaking” does not necessarily require extensive physical damage.

Depending on the circumstances, it may include:

• Forcing open a door or window;
• Opening a closed door, window or other barrier used to prevent entry;
• Damaging or bypassing a lock;
• Entering through an opening created by force;
• Using a tool to obtain entry; or
• Obtaining entry through a threat, trick or another legally recognized form of constructive breaking.

Whether a breaking occurred depends on the physical circumstances and applicable legal definitions.

The absence of visible damage does not automatically mean that there was no breaking. However, entering through an already open entrance without force, threat or trick may raise a different legal issue.

What Does “Entering” Mean?

Entry does not necessarily require the accused’s entire body to be inside the place.

Depending on the circumstances, entry may occur when part of a person’s body or an instrument used for the alleged offence crosses into the place.

The Crown must prove that the alleged entry relates to the accused and occurred in the manner required by law.

What Is a “Place”?

For the purposes of section 348, a place may include:

• A dwelling-house;
• A building or structure, or part of one;
• A railway vehicle;
• A vessel;
• An aircraft;
• A trailer; or
• Certain enclosures used for keeping fur-bearing animals.

Whether the location is a dwelling-house is particularly important because break and enter involving a dwelling-house carries different potential consequences.

Break and Enter Into a Dwelling-House

A dwelling-house generally refers to a place occupied as a residence.

It may include:

• A detached or semi-detached home;
• A condominium or apartment;
• A room used as living accommodation;
• An attached area that forms part of the residence; or
• Another place used for residential purposes.

Break and enter involving a dwelling-house is an indictable offence carrying a maximum sentence of life imprisonment.

The maximum penalty does not determine the sentence in an individual case, but the law treats residential break and enter seriously because of the potential effect on the occupants’ safety and privacy.

Break and Enter Into a Commercial or Other Place

A break and enter allegation may also involve:

• A store;
• An office;
• A warehouse;
• A restaurant;
• An industrial building;
• A school;
• A construction site;
• A storage facility; or
• Another non-residential structure.

Where the place is not a dwelling-house, section 348 permits the Crown to proceed by indictment or summary conviction. The potential sentence depends on how the Crown proceeds and the circumstances of the case.

Break and Enter With Intent

A person may be charged even where police do not allege that the intended offence was completed.

The Crown may allege that the accused broke and entered with the intention of committing an indictable offence inside.

Intent may be inferred from circumstantial evidence such as:

• The time and manner of entry;
• Tools or objects allegedly carried;
• Conduct inside the place;
• Items moved or collected;
• Clothing or disguise;
• Communications before or after the entry;
• Statements allegedly made by the accused; or
• Conduct after leaving the location.

Suspicious circumstances do not automatically prove the specific criminal intent alleged. The evidence must establish that intent beyond a reasonable doubt.

Breaking Out After an Offence

Section 348 also applies where a person allegedly breaks out of a place after:

• Committing an indictable offence inside; or
• Entering the place with the intention of committing an indictable offence.

This part of the offence focuses on the person’s method of leaving as well as the conduct or intention inside the place.

What Must the Crown Prove?

The Crown must prove every essential element of the charge beyond a reasonable doubt.

Depending on the allegation, the Crown may need to establish:

• The identity of the accused;
• That the location was a “place” within the Criminal Code;
• Whether the location was a dwelling-house;
• That a breaking occurred;
• That the accused entered or broke out of the place;
• That the accused intended to commit an indictable offence inside;
• That an indictable offence was committed inside, where alleged;
• That the accused knew they lacked lawful authority to enter; and
• That the evidence supports the particular form of break and enter charged.

Section 348 contains evidentiary presumptions relating to intent where breaking and entering or breaking out is proved. Evidence concerning the accused’s purpose and authority to enter may therefore be important.

Evidence in a Break and Enter Case

Evidence may include:

• Statements from owners, occupants or witnesses;
• Security or doorbell video;
• Police body-worn camera recordings;
• Photographs of doors, windows or property damage;
• Fingerprint or DNA evidence;
• Footwear or tool-mark evidence;
• Property allegedly recovered by police;
• Cellphone and location data;
• Vehicle records;
• Alarm-system records;
• Access-card or key-fob records;
• Text messages and social-media communications;
• Search-warrant materials;
• Police surveillance; and
• Statements allegedly made by the accused.

The defence may examine whether the evidence reliably establishes identity, entry and criminal intent.

Security and Doorbell Video

Video evidence may assist in determining:

• When entry occurred;
• How entry was obtained;
• How many people were present;
• What clothing or objects were involved;
• Whether a person’s face was visible;
• What happened inside or outside the location; and
• Which route was taken afterwards.

Video quality, lighting, camera angle and missing portions may limit what can reliably be concluded.

The defence may examine the original recording and its metadata rather than relying only on selected screenshots or police descriptions.

Fingerprint and DNA Evidence

Police may collect fingerprints or biological material from:

• Doors and windows;
• Tools;
• Property inside the location;
• Clothing;
• Vehicles; or
• Objects allegedly left behind.

The presence of a fingerprint or DNA profile may connect a person to an object or location, but it does not always establish when or why the material was deposited.

The defence may examine:

• Whether the accused had previously been lawfully present;
• Whether the object was movable;
• The location and quality of the sample;
• Possible transfer or contamination;
• Collection and laboratory procedures; and
• Continuity of the exhibit.

The absence of forensic evidence does not automatically end the prosecution, but it may be relevant when considered with the rest of the case.

Possession of Property Allegedly Stolen

Police may rely on property found with an accused or at a location connected to the accused.

The defence may examine:

• Whether the property can be reliably identified;
• Whether the accused knew the property was obtained through an offence;
• Whether other people had access to the location;
• How and when the accused obtained the property; and
• Whether possession connects the accused to the break and enter itself.

Possession of stolen property and participation in the original break and enter are distinct legal issues.

Break-In Instruments and Related Charges

An investigation may also result in an allegation that the accused possessed an instrument suitable for breaking into a place, motor vehicle, vault or safe.

The Crown must prove the purpose for which the object was possessed. Possession of an ordinary tool is not automatically criminal.

Related charges may include:

• Possession of property obtained by crime;
• Theft;
• Mischief;
• Wearing a disguise with intent;
• Possession of break-in instruments;
• Assault;
• Robbery;
• Weapons offences; or
• Breach of a release or probation order.

The Crown must prove every separate charge beyond a reasonable doubt.

Possible Defences to a Break and Enter Charge

The available defence depends on the allegations and evidence. Possible issues may include the following.

Mistaken Identification

The accused may not have been the person who entered the location.

The defence may challenge eyewitness evidence, unclear video, clothing comparisons, police identification procedures and other evidence connecting the accused to the incident.

Lawful Authority or Permission to Enter

The accused may have had permission, authority or an honest belief that they were entitled to enter.

This issue may arise in disputes involving:

• Family members;
• Former partners;
• Tenants or landlords;
• Employees;
• Contractors;
• Business partners; or
• Shared property.

Permission to enter does not necessarily authorize every act committed inside, but it may affect whether the Crown can prove breaking and entering.

No Breaking

The evidence may not establish that the accused used force, opened a closed barrier, relied on a threat or trick, or otherwise committed a breaking recognized by law.

The condition of the entrance and the method of entry may require examination.

No Intent to Commit an Indictable Offence

Even if entry occurred, the Crown must establish the required criminal intention.

The accused may have entered for another purpose, or the surrounding evidence may not support the offence alleged by the Crown.

No Indictable Offence Committed Inside

Where the charge alleges that an offence was committed after entry, the Crown must prove that offence as well as the breaking and entering.

Missing property, damage or suspicion alone may not establish who committed the alleged offence.

Alibi

Evidence may show that the accused was somewhere else when the incident occurred.

An alibi may be supported by witnesses, work records, video, transactions, electronic communications or reliable location information.

Mere Presence or Association

A person may have been near the location or associated with another suspect without participating in the break and enter.

The Crown must prove intentional participation rather than proximity or association.

Unreliable Forensic Evidence

Fingerprint, DNA, footwear and tool-mark evidence must be properly collected, preserved and interpreted.

The defence may examine whether the evidence establishes when and how the accused was allegedly connected to the location.

Charter Violations

Potential Charter issues may involve:

• An unlawful detention or arrest;
• A vehicle or residence search;
• Problems with a search warrant;
• Seizure of cellphones or property;
• Failure to provide timely access to counsel; or
• Statements obtained in violation of the accused’s rights.

Where a Charter breach is established, the defence may seek exclusion of evidence or another appropriate remedy.

Not every defence applies to every case. The disclosure and individual circumstances must be reviewed before a defence strategy can be determined.

Parties to a Break and Enter

More than one person may be charged even when not everyone is alleged to have entered the building.

The Crown may allege that a person:

• Committed the offence;
• Assisted another person;
• Encouraged another person;
• Acted as a lookout;
• Drove a vehicle knowing the intended purpose; or
• Participated in a common plan.

Mere friendship, presence or association is not sufficient by itself. The Crown must prove the required knowledge and intentional participation of each accused.

What Happens After a Break and Enter Charge?

Following an arrest, the accused may be released with conditions or held for a bail hearing.

Release conditions may prohibit the accused from:

• Attending the location involved;
• Communicating with the owner, occupants or witnesses;
• Communicating with co-accused persons;
• Possessing weapons or break-in instruments;
• Entering specified geographic areas; or
• Being outside the residence during specified hours.

The case will normally proceed through several stages:

• Release or bail;
• First court appearance;
• Receipt and review of Crown disclosure;
• Review of video and forensic evidence;
• Crown pre-trial discussions;
• Judicial pre-trial;
• Charter applications or other motions;
• Resolution discussions; and
• Trial, if the matter is not otherwise resolved.

The accused must comply with all release conditions unless they are formally changed.

Will a Break and Enter Charge Result in Jail?

The possible outcome depends on:

• Whether the place was a dwelling-house;
• The offence allegedly intended or committed;
• Whether anyone was present;
• Whether violence or a weapon was involved;
• The degree of planning;
• The value of any property;
• Property damage;
• The accused’s role;
• The accused’s criminal record; and
• Other aggravating or mitigating circumstances.

Break and enter involving a dwelling-house carries a maximum sentence of life imprisonment. Break and enter involving another place carries different potential penalties.

The maximum penalty does not determine the sentence in an individual case. No particular outcome can be predicted without reviewing the evidence and circumstances.

Break and Enter Charges and Immigration Status

A break and enter charge or conviction may create serious immigration consequences for a permanent resident, foreign national or other person who is not a Canadian citizen.

The potential effect depends on the offence, prosecution method, sentence and individual immigration status. Coordinated advice from criminal and immigration counsel should be considered before decisions are made concerning a plea or resolution.

Why Experience With Police Investigations Matters

Before becoming a criminal defence lawyer, Jake Shen served as a Toronto police officer. This experience provides practical insight into how police investigate break-ins, collect video and forensic evidence, conduct surveillance, execute searches and interview suspects.

As defence counsel, Jake reviews the investigation from the perspective of the accused and examines whether identification evidence is reliable, whether the Crown can prove entry and intent, and whether the accused’s Charter rights were respected.

Speak With a Toronto Criminal Defence Lawyer

If you have been charged with break and enter in Toronto, Markham or elsewhere in Ontario, obtaining legal advice early may help you understand the allegations, release conditions and evidence.

Contact Jake Shen to discuss the charge, the police investigation and the next steps in the criminal court process.

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The information on this page is general information and is not individualized legal advice. Reading this page or submitting a contact form does not by itself create a lawyer-client relationship.