Being charged with break and enter does not mean you will be convicted. Many of these allegations rest on circumstantial evidence: a person found near a property, seen on unclear video, or connected to items police say were stolen. The Crown must still prove who entered and why, and in many cases there are viable defences or ways to resolve the matter without a conviction.
Under section 348 of the Criminal Code, break and enter includes entering a place without permission with intent to commit an indictable offence inside, committing one after entry, or breaking out of a place after committing an offence there. One of the most important facts in any break and enter case is the type of place involved, because a dwelling house changes everything that follows.
Foote Law represents people charged with break and enter offences throughout Ontario, from the first police contact through bail, resolution discussions, and trial.
Many people believe break and enter requires forced entry or damage. That is not the case. A "break" can include:
Walking through a genuinely open entrance is not a break. A "place" is also broader than a building, and courts have applied the definition to homes, businesses, and other enclosed spaces.
The law also presumes intent. Under section 348(2) of the Criminal Code, a person shown to have broken into a place is presumed, in the absence of evidence to the contrary, to have intended to commit an offence inside. That presumption can be answered, and how it is answered is often the centre of the defence.
This covers a house, apartment, or other residence, whether or not anyone was home. Under section 348(1)(d) of the Criminal Code, it is a straight indictable offence with a maximum sentence of life imprisonment.
This applies to a business, shed, garage, or other place that is not a residence. Under section 348(1)(e), it is a hybrid offence carrying a maximum of ten years on indictment, or two years less a day on summary conviction.
Home invasion is not a separate charge. Where the home was occupied and violence or threats were involved, the court must treat that as an aggravating factor at sentencing.
Being unlawfully in a dwelling-house, under section 349 of the Criminal Code, is a lesser offence that requires no breaking. Possession of break-in instruments under section 351(1), and possession of stolen property, are often laid alongside a break and enter count.
Few break and enter cases involve a witness who saw the entry. The Crown usually builds the case from pieces: fingerprints or DNA, video from nearby cameras, cell phone location, or stolen property found in the accused's possession. Where a person is found with recently stolen items, the Crown may ask the court to infer they committed the break-in.
Each piece can be tested:
A residential break and enter allegation is treated seriously, and the accused may be held for a bail hearing. Standard conditions include staying away from the address involved, no contact with the occupants, and sometimes a curfew or residency requirement. Breaching any condition is a separate criminal offence.
We accept Legal Aid Ontario certificates and Employee Assistance Program (EAP) referrals.
Click any question to read the answer.
Yes. Most cases are built on circumstantial evidence, such as DNA, video, cell phone location, or possession of stolen property, and the Crown may ask the court to infer guilt from that evidence.
Home invasion is not a separate charge in the Criminal Code. It describes a break and enter where the home was occupied and violence or threats were involved, and the court treats that as an aggravating factor at sentencing.
Yes. A "break" under section 348 includes opening a closed but unlocked door or window, or gaining entry by a trick or threat, not just forced entry or damage.
It depends on whether the place was a residence, whether it was occupied, and your record. Non-residential and first-time cases may result in a discharge or probation; residential break and enter carries a real risk of custody.
