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Break and Enter Defence

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.

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What Counts as "Breaking"
May Surprise You

What Counts as a "Break"

Many people believe break and enter requires forced entry or damage. That is not the case. A "break" can include:

  • Opening a closed but unlocked door or window
  • Entry gained by a trick or a threat, which the law also treats as breaking and entering

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 Presumption of Intent

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.

Dwelling-House or Not:
Why It Matters

01

Break and Enter of a Dwelling-House

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.

02

Break and Enter of a Non-Dwelling

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.

03

Home Invasion Allegations

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.

04

Related Charges

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.

How These Cases Are Proven
& Bail Conditions

How These Cases Are Proven

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:

  • Identification from video is often unreliable
  • Forensic evidence shows presence at some point, not necessarily at the time of the offence
  • An inference from possession of stolen property can be answered with an explanation
  • A driver or lookout can be charged as a party, but presence near the scene alone is not guilt

Bail and Release Conditions

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.

Sentencing, Early Advice
& How Foote Law Can Help

Sentencing for Break and Enter

  • There is no single sentence. Courts weigh whether the place was a residence, and whether it was occupied
  • The presence of violence or threats
  • What was taken or damaged
  • The accused's criminal record
  • The accused's personal circumstances
  • Outcomes for less serious allegations may include a discharge where legally available, probation, or a conditional sentence where permitted by law
  • Residential break and enter is treated more severely, and custody is a real possibility in serious cases
  • A conviction produces a permanent criminal record with consequences for employment, travel, professional licensing, and immigration status

Why Early Legal Advice Matters

  • Protect your right to remain silent before any police interview
  • Challenge restrictive release conditions
  • Preserve video and records before they are overwritten
  • Test the identification and forensic evidence at the foundation of the Crown's case
  • Open resolution discussions with the Crown before positions harden

How Foote Law Can Help

  • Review of Crown disclosure, including video, forensic evidence, and police notes
  • Representation at bail hearings and preparation of release plans
  • Challenges to identification evidence and circumstantial cases
  • Charter applications where police searches, detention, or questioning were unlawful
  • Negotiation with the Crown on resolution, including withdrawal or reduced charges where the facts support it
  • Trial representation in the Ontario Court of Justice and the Superior Court of Justice

We accept Legal Aid Ontario certificates and Employee Assistance Program (EAP) referrals.

Frequently Asked Questions

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.

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