Break and Enter Charges in Ontario

Published December 8, 2025

Break and enter is one of the more serious property offences in the Criminal Code of Canada. The charge encompasses a range of conduct — from breaking into an unoccupied shed to entering an occupied home — and the penalties reflect the potential danger these offences pose. In Ontario, break and enter charges are prosecuted vigorously, particularly where a dwelling-house is involved.

Understanding the elements of the offence, the distinction between residential and commercial break-ins, and the defences available is essential for anyone facing these charges.

The Legal Definition of Break and Enter

Break and enter is defined in section 348 of the Criminal Code. The offence is committed when a person breaks and enters a place with intent to commit an indictable offence therein, or breaks and enters a place and commits an indictable offence therein, or breaks out of a place after committing or having entered with intent to commit an indictable offence.

The term "break" does not require physical force or visible damage. Under section 321, a person "breaks" when they open anything that is closed — a door, a window, a gate — or when they gain entry through a permanent or temporary opening by any means, including through an open window or an unlocked door, where the entry is without lawful authority. The concept of "breaking" is broad and focuses on the act of entering without authorization rather than on physical destruction.

"Place" is broadly defined to include a dwelling-house, a building, a structure (or any part of these), a trailer, a railway vehicle, a vessel, an aircraft, or a pen or enclosure for animals. The type of place entered is significant because it determines the maximum penalty.

The Crown must prove two things: that the accused broke and entered (or was found in) the place, and that the accused intended to commit an indictable offence inside. The intended offence is typically theft, but it can be any indictable offence — assault, mischief, or others.

Dwelling-House vs. Non-Dwelling-House

The Criminal Code draws a critical distinction between break and enter of a dwelling-house and break and enter of a non-dwelling place. A dwelling-house is defined as any place kept or occupied as a permanent or temporary residence, including hotel rooms and apartments.

Break and enter of a dwelling-house is a straight indictable offence — meaning the Crown cannot elect to proceed summarily. The maximum penalty is life imprisonment. This severe maximum reflects the heightened danger and trauma associated with having one's home broken into, particularly while occupants are present. Courts treat residential break and enters with particular seriousness, and custodial sentences are the norm even for first offenders in many circumstances.

Break and enter of a non-dwelling place — such as a commercial building, storage unit, garage, or school — is a hybrid offence. On indictment, the maximum is 10 years imprisonment. On summary conviction, the maximum is two years less a day. The penalties for commercial break and enter, while serious, generally involve shorter sentences than residential cases, particularly where the building was unoccupied and no confrontation occurred.

Being Found In: Section 349

Section 349 of the Criminal Code addresses the related offence of being unlawfully in a dwelling-house. A person who, without lawful excuse, enters or is found in a dwelling-house with intent to commit an indictable offence is guilty of an offence punishable by up to 10 years on indictment.

This provision is distinct from break and enter because it does not require a "breaking" — entering through an unlocked or open door is sufficient. It is frequently charged in cases involving trespassing in residential buildings, unauthorized entry into apartment complexes, or situations where a person is found inside a home without the occupant's knowledge or consent.

Defences to Break and Enter Charges

Several defences may apply to break and enter charges, depending on the specific facts. A thorough review of disclosure is essential to identify the strongest available defence.

Lack of intent: The Crown must prove that the accused intended to commit an indictable offence inside the premises. Without proof of this intent, the offence of break and enter is not established. For example, a person who enters a building to seek shelter from extreme weather, with no intent to steal or cause damage, may not have committed break and enter — though they may face trespassing charges under provincial legislation.

Colour of right: A person who genuinely believes they have a legal right to enter the premises may raise the defence of colour of right. This might apply, for example, in disputes between landlords and tenants, or where a person enters property they believe belongs to them or to which they have been given access.

Identity: Break and enter cases often rely on circumstantial evidence — forensic evidence, surveillance footage, proximity to the scene, or possession of stolen property. The defence may challenge the identification evidence, arguing that the Crown has not proven beyond a reasonable doubt that the accused was the person who committed the offence.

Charter violations: If police obtained evidence through an unlawful search — for example, searching a suspect's home or vehicle without a warrant — or if the accused's rights during police questioning were violated, the resulting evidence may be excluded under section 24(2) of the Charter.

Sentencing for Break and Enter

Sentencing for break and enter varies significantly based on the type of premises, whether the premises were occupied, whether violence or confrontation was involved, the value of property taken, and the accused's criminal record.

For residential break and enters, the starting point for sentencing in Ontario is generally a period of incarceration, even for first offenders. Courts have consistently held that denunciation and deterrence are the primary sentencing objectives for home invasions, reflecting the violation of personal security that these offences represent. Sentences of two to four years are common for first offences involving occupied homes, with longer sentences for aggravated circumstances.

For commercial break and enters, the range is broader. First offenders may receive conditional sentences (served in the community), suspended sentences with probation, or shorter periods of incarceration, depending on the circumstances. Restitution orders — requiring the offender to compensate the victim for losses — are frequently imposed.

Courts also consider the offender's personal circumstances, including their age, background, prospects for rehabilitation, and whether they have taken steps to address underlying issues such as addiction. The sentencing process involves balancing these individual factors against the need to protect the public and deter others.

Taking Action on Break and Enter Charges

Break and enter charges demand prompt and thorough legal representation. The potential for incarceration is real, even for first offences, and the stakes are too high to navigate without experienced counsel. A defence lawyer will obtain and review all disclosure, investigate the circumstances, identify available defences, and advocate for the best possible outcome — whether through negotiation with the Crown or at trial.

If you or someone you know is facing break and enter charges in Ontario, contact a criminal defence lawyer as soon as possible to discuss the case and begin preparing a defence.

For the full text of the break and enter provisions, see sections 348 and 349 of the Criminal Code of Canada.