Break and Enter Charges in Ontario — Penalties, Defences & What to Know

What Is Break and Enter?

Break and enter is defined in section 348 of the Criminal Code. A person commits break and enter when they break into a place, enter a place, or break out of a place, with the intent to commit an indictable offence inside — or after having committed an indictable offence inside.

“Breaking” does not require physical force or damage. Under section 321, break means to open anything that is used or intended to be used to close or cover an opening. Opening an unlocked door, lifting a window, or even pushing open a gate that is meant to restrict entry is sufficient. The essence of “breaking” is overcoming a barrier intended to keep people out.

“Entering” means any part of the body or any instrument used by the accused crosses the threshold. The accused does not need to fully step inside — reaching an arm through an open window to grab property is enough to constitute entry.

The Crown must also prove intent to commit an indictable offence inside the premises. In most break and enter cases, the intended offence is theft. However, the indictable offence can be anything — assault, mischief, arson. The intent must exist at the time of the break and enter, not arise afterward.

Break and Enter a Dwelling vs. Commercial Property

The Criminal Code draws a sharp distinction between breaking and entering a dwelling house and breaking and entering a non-dwelling. This distinction has a dramatic effect on the maximum penalty and how the offence is prosecuted.

A dwelling house is defined broadly in section 2 of the Criminal Code. It includes any building or structure, or part of it, that is kept or occupied as a permanent or temporary residence — including apartments, hotel rooms, and mobile homes. The attached garage of a home is part of the dwelling.

A non-dwelling or “place” includes commercial buildings, warehouses, storage units, offices, schools, and any other structure that is not a residence.

Break and Enter with Intent

Section 348(1)(a) prohibits breaking and entering a place with intent to commit an indictable offence. This means the Crown does not need to prove that the accused actually committed the offence inside — only that they intended to. If the accused broke into a building with the intent to steal but was caught before taking anything, the offence is complete.

Intent is typically proven through circumstantial evidence: the time of entry (nighttime entries suggest intent to steal when no one is present), whether the accused brought tools or bags, whether the accused had any legitimate reason to be on the premises, and whether property was found on the accused or nearby.

Section 348(2) creates a presumption of intent: if the Crown proves breaking and entering, the accused is presumed to have intended to commit an indictable offence inside, absent evidence to the contrary. This shifts an evidential burden to the defence to raise a reasonable doubt about intent.

Home Invasion Charges

“Home invasion” is not a distinct offence in the Criminal Code. It refers to a break and enter into an occupied dwelling, typically involving confrontation with or violence toward the occupants. The charge is still laid under section 348, but section 348.1 directs courts to treat certain circumstances as aggravating at sentencing.

Under section 348.1, a court sentencing for break and enter of a dwelling must consider as aggravating factors: (a) the home was occupied at the time, (b) the offender used violence or threats of violence, (c) the offender knew or was reckless as to whether the home was occupied, and (d) the offence had a significant impact on the occupants.

Home invasion cases routinely result in significant penitentiary sentences. Ontario courts have imposed sentences ranging from 3 to 8 years for home invasions, with higher sentences where weapons were used, occupants were assaulted, or the offender has a related record.

Penalties and Sentencing

Sentencing for break and enter varies widely depending on the type of premises, whether the premises was occupied, the value of property taken, the use of violence, and the accused’s criminal record.

Non-dwelling, first offence. For a first offence involving a commercial break and enter with no violence, a conditional sentence (served in the community) or a suspended sentence with probation is a realistic outcome. Sentences of 3 to 12 months of conditional sentence are common.

Dwelling house, first offence. Courts treat break and enter into a dwelling more seriously. Even for a first offender, a custodial sentence is common. The range for a first offence typically falls between 6 months and 2 years. A conditional sentence may still be available depending on the circumstances.

Home invasion. Where the dwelling was occupied and the occupants were confronted, sentences escalate significantly. Penitentiary sentences of 3 to 8 years are common. The presence of weapons, injuries to occupants, or targeting of vulnerable victims pushes sentencing toward the higher end.

Repeat offenders. For accused persons with prior break and enter convictions, courts impose progressively harsher sentences. A second or third offence involving a dwelling will frequently result in a penitentiary sentence of 2 or more years.

Common Defences to Break and Enter

Break and enter cases are defended on several fronts, and identification is often the central issue.

Identification. The Crown must prove the accused is the person who committed the break and enter. Many B&E cases rely entirely on circumstantial identification evidence — surveillance footage, fingerprints, DNA, or property found in the accused’s possession. Each form has documented limitations. Surveillance footage may be unclear or fail to identify the person. Fingerprints prove a person touched a surface but not when. DNA found at a scene does not prove the accused entered unlawfully. The Ontario Court of Appeal in R v. Dookheea, 2015 ONCA 169 emphasized the dangers of drawing identity inferences from limited forensic evidence and the need for a cautious approach to circumstantial identification in property offences.

Lack of intent. If the accused entered a building without the intent to commit an indictable offence — for example, seeking shelter, entering by mistake, or believing they had permission — the offence is not made out. The presumption of intent under section 348(2) can be rebutted with evidence explaining the accused’s presence.

Consent or colour of right. If the accused had permission to enter the premises, or honestly believed they had a right to be there, the Crown cannot prove the break and enter. This arises in disputes between landlords and tenants, business partners, and estranged spouses.

Charter violations. If the police obtained evidence through an unlawful search of the accused’s home, vehicle, or person, that evidence may be excluded under section 24(2) of the Charter. In break and enter cases, stolen property is frequently discovered during a search of the accused’s residence or vehicle — and if that search was conducted without a warrant or without lawful authority, the property may be excluded from evidence.

No “breaking.” If the accused entered through an open door or opening that was not closed or covered, there may be no “break” as defined in section 321. The Ontario Court of Appeal in R v. Jewell, [2002] O.J. No. 3783 (ONCA) considered the meaning of “break” in the context of whether a partially open barrier constitutes a closed opening that must be “broken” to enter.

Possession of Break-In Instruments

Section 351(1) of the Criminal Code makes it an offence to possess any instrument suitable for breaking into a place, motor vehicle, vault, or safe, if the possession is for the purpose of committing a break and enter.

The offence is hybrid, carrying a maximum of 10 years by indictment. The Crown must prove two things: that the accused possessed an instrument suitable for breaking in, and that the purpose of the possession was to use it to break into a place. Mere possession of a common tool — a screwdriver, a crowbar — is not sufficient. The Crown must connect the tool to an intent to break in, typically through circumstantial evidence such as the accused being found near a target premises at night, having no legitimate reason for possessing the tools, or being in possession of gloves, disguises, or other items consistent with a break and enter plan.

Defence counsel challenge these charges by demonstrating a legitimate reason for possessing the tools (employment, home repair), the absence of evidence connecting the tools to any planned break and enter, and Charter violations in the search that discovered the instruments.

How We Defend Break and Enter Cases

Break and enter cases require a meticulous review of the Crown’s evidence. The defence starts with the disclosure — police reports, forensic reports, surveillance footage, witness statements, and any statements by the accused.

Challenging identification is central. If the Crown relies on surveillance footage, we assess its quality, angle, lighting, and whether the person captured can actually be identified as the accused. If fingerprints or DNA are relied upon, we assess the collection methods, the chain of custody, and whether the forensic evidence proves presence at the time of the offence rather than at some earlier legitimate time. Witness identification — particularly from strangers — is challenged using cross-examination on the conditions of observation, the witness’s opportunity to see the person, and any suggestive identification procedures used by the police.

Challenging the search. Stolen property found in the accused’s home or vehicle is powerful evidence, but only if the search was lawful. We scrutinize the warrant (if there was one) for deficiencies in the Information to Obtain, or challenge warrantless searches as violations of section 8 of the Charter.

Negotiating resolution. Where the evidence is strong, defence counsel work to achieve the best possible outcome — withdrawal of related charges, a joint submission on a conditional sentence, or favourable sentencing submissions. For theft and property offence cases involving first-time offenders and non-dwelling break and enters, a non-custodial sentence is a realistic objective.

Representative Results

The following are representative cases from our practice involving break and enter charges:

• R v. K.P. — Youth client charged with break & enter to commit and possession of property obtained by crime had his charges withdrawn at 2201 Finch Court. The break and enter involved the theft of over $10,000 from a home. The Crown withdrew the charge due to credibility issues with respect to the main witness and the difficulty in proving involvement in the theft that were raised prior to trial as well as an unconstitutional search of my client.
• R v. B.F. — Client charged with break and enter to commit and theft over had charge stayed by the Crown at Old City Hall in Toronto. The Crown alleged that my client was responsible for a break & enter into a home and the theft of $50,000 worth of contents. As a result of forensic inquiries by the defence that weakened the Crown’s case, the Crown chose not to proceed to a preliminary inquiry.

Representative work; case names anonymized. Past results do not guarantee future outcomes.

Related Offences

Break and enter charges are frequently accompanied by other property offences. Theft charges are the most common companion — the Crown will lay both a break and enter charge and a theft charge where property was taken. Possession of property obtained by crime (section 354) is charged where stolen property is found in the accused’s possession. Robbery may be charged where violence or threats were used during the break and enter. Mischief (section 430) may be added where property was damaged during the entry.

For offences involving vehicles, see our guide on the Toronto criminal lawyer page for information about property offences in the GTA.