Breaking and Entering Charges under Section 348 (1) of the Criminal Code of Canada

Breaking and Entering (aka B and E) is a straight indictable criminal offence in Canada punishable by up to life in prison. Most first time offenders who are found guilty of a B and E will receive a jail sentence. A conditional or absolute discharge is not an available sentencing option meaning that every offender will receive a criminal record upon being found guilty. The Criminal Code also makes special provisions for cases involving a home (dwelling houses) with tougher enhanced sentences.

While the offence uses the term “break”, a person need not break a window, door or anything else to gain entry into a home, commercial property, government building, etc. to be charged. They may gain access by using a key in their possession or simply walk through an open door.

B and E cases can be classified as both domestic and non-domestic. The offence is codified in Section 348 (1) of the Criminal Code which defines Breaking and Entering as:

Breaking and entering with intent, committing offence or breaking out

348 (1) Every one who

(a) breaks and enters a place with intent to commit an indictable offence therein,
(b) breaks and enters a place and commits an indictable offence therein, or
(c) breaks out of a place after
(i) committing an indictable offence therein, or
(ii) entering the place with intent to commit an indictable offence therein,

is guilty

(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and

(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

Those found guilty of breaking and entering will receive a permanent criminal record in all cases. For immigrant accused, a conviction can cause deportation from Canada and the refusal of future IRCC applications. All forms of B and E are also considered to be crimes of moral turpitude by the United States whose maximum potential sentences far exceed any exemptions meaning those who are found guilty will likely be denied travel entry to the U.S. if they are not a U.S. citizen.

What offences are classified as indictable and can support a conviction for breaking and entering?

The definition of a break and enter includes any offence that is not a straight summary conviction offence. All hybrid offences are considered indictable. The offence of B and E is codified to require the accused to have the intent of committing an indictable criminal offence or to actually commit one upon breaking in. Contrary to popular belief, most criminal offences are indictable (includes all Crown elect hybrid offences).

In B and E cases the most common included indictable offences alleged are:

1. Theft under and over $5000
2. Mischief under and over $5000
3. Assault, assault with a weapon, aggravated assault
4. Sexual assault
5. Robbery
6. Uttering threats
7. Failure to Comply
8. Arson

There are very few straight summary offences in the Criminal Code. Most common offences would meet the definition of indictable for the purposes of a B and E charge.

With most crimes the Crown has the option to proceed summarily (summary conviction) or by indictment. These offences are often referred to as Crown elect indictable or hybrid offences. There is a lot of confusion about this as many websites wrongly state that many of these offences, in particular theft under $5000 and mischief under $5000, are “summary offences”. They are not summary offences (and they never have been). They are Crown elect indictable offences. Anyone who says otherwise is wrong.

While virtually any crime upon entering will suffice, there still must be the intent to do something illegal by gaining entry. A person who is drunk and mistakenly breaks a door and enters into their neighbour’s similar looking house thinking it is their own is not committing the offence of breaking and entering (dwelling). A more appropriate charge in these circumstances would be criminal mischief if anything at all.

Most common reasons (motives) for committing a B and E offence

The intent or motive for committing a B and E usually involves:

1. Wanting to steal or recover property that the accused considers to be theirs
2. Wanting to damage property after a dispute or non-payment for services (contractors, construction workers, roofers, and other manual labour jobs)
3. Workplace, employment, or business partner related disputes
4. Domestic or family law related disputes
5. Anger towards a neighbour, coworker, or other 3rd party
6. Alcohol, drugs, mental health, and other issues of cognitive impairment
7. Youths entering the homes of strangers or friends without appreciating the seriousness of their actions (YCJA charges)

Domestic breaking and entering charges: some people get charged for breaking and entering without realizing they were acting illegally.

If the alleged victim is a spouse, ex, or otherwise non-platonically linked to the accused currently or in the past, the case will be classified as a domestic violence (aka intimate partner violence) offence by the Crown and courts.

Many B and E cases involve domestic or family related incidents particularly in cases where there were shared living arrangements or property. When the relationship breaks down and parties separate (to varying degrees), often there are disagreements as to who should have access to a particular residence. An accused may break in (often using their own key) to recover property they feel entitled to or to damage property in anger or out of spite.

In some cases the accused may break into their former family home because they are desperate to get back together with their ex partner or are longing to see their children. Such surprises are taken very seriously if reported to the police and will almost always lead to criminal charges because of Ontario’s domestic violence policies.

A lot of times the person’s spouse or ex will suspect that the accused entered the property without actually knowing for sure. They may think that something was moved, things were missing from the fridge, the TV channel was changed, etc. and immediately conclude that their ex had been inside. Such circumstantial evidence is usually not enough to secure a conviction. For this reason the police will look for the accused to admit to being inside.

The accused's statements to the alleged victim, the police, etc. often provide the evidence needed to press charges.

A phone call or invitation to discuss things at the police station with the accused may be used as in investigative tool in hopes of gaining an admission (ie. confession).

The police may tell the accused they are free to leave at any time and that this is their opportunity to tell their side of the story. Once they admit to going there, perhaps trying to convince the police they have every right to be there, the accused will be placed under arrest and charged. Had they not said anything they probably would have remained free to leave. The admission turns what perhaps should be a civil dispute into a criminal case.

The accused may also foolishly admit to entering the property via text message to their ex which will be used against them in court. They often admit to the crime under the false belief that they were allowed to be there or that they ought to be allowed in there (i.e. “it’s my house - I paid for it!”). Whether to the police, their ex, partner, or anyone else it is often the accused’s own words that provide the evidence the police need to lay charges.

If the accused does not admit to going inside, and there is no video/CCTV evidence of them being there, B and E charges can be extremely hard to prove in court. The police may dust for fingerprints but such results are often inconclusive or may only prove that the accused was inside the residence “at some point” in the past, which is almost always the case in domestic related matters.

Breaking and entering a dwelling (Criminal Code s. 348 (1)(d))

If the B and E is a house, apartment, condo, cottage, trailer or any other home the accused will be charged with breaking and entering a dwelling. CC s. 348 (1)(d) classifies this as an offence punishable by up to life in prison meaning there is no discharge or non criminal record disposition available to the court upon a finding of guilt. The lowest possible sentence is a suspended sentence with probation. Even many first time offenders will be sentenced to jail for a B and E dwelling charge if found guilty.

As mentioned above, a lot of these cases are domestic in nature and therefore the offence will fall under the category of B and E dwelling. When most people think of this crime they think of home invasions of unknown third parties, not a drunk ex husband who breaks into his former cottage looking for his fishing rod knowing that nobody is home. Either way, the charge remains the same. The accused will be facing an indictable offence punishable by up to life in prison.

Workplace and commercial property breaking and entering cases

B and Es also often involve business partners or employees who enter their workplace (office, job site, warehouse, etc.) without authorization. They may be looking to take cash, computer hard drives, or other equipment. Often the accused believes or feels they have been given permission to enter the property. They may be in possession of a key, card, or access code and feel this means they are legally entitled to enter the property when they are not expected to be there.

If there is a dispute involving the employee or disagreement with business partners it may be alleged that the motivation is to obtain business/financial records, secret company information, sensitive computer data, or other business equipment. In cases involving construction jobs or worksites the accused may be alleged to be trying to sabotage a jobsite or take valuable materials. Sometimes property is damaged, torn down, set on fire (arson) or otherwise damaged out of revenge.

Longer jail sentences are often imposed for employer breach of trust breaking and entering cases.

If the accused is a current employee of the business that they broke into they may be alleged to have committed a breach of trust B and E. It is considered to be an aggravating factor to breach the trust of an employer (biting the hand that feeds) by taking advantage of knowledge or access to a business for personal gain, or to compete with them in the future. This will be considered by the court as a reason for a lengthy jail sentence if the accused is ultimately found guilty.

CC s. 348 (1)(e) allows for prison sentences of up to 10 years and a sentence in the range of 6 months - 4 years would not be uncommon even for a first time offender depending on the circumstances.

How lawyers defend breaking and entering charges in court: getting the charges dropped or winning an acquittal at trial.

Being charged for a B and E does not make the accused guilty. They may in fact be legally entitled to enter the property in some cases depending on existing court orders and the unique circumstances of their case. It is generally not a crime to break and enter into your own home absent any 3rd party ownership interests. In cases involving a recent separation or break up it may be unclear whether the accused was acting in a way that is legally permissible or not.

In workplace or business partner related cases the accused may have had a legitimate right to be present on the property or to conduct their actions. The police will often press charges and allow the courts to decide the merits of the case. This is extremely unfortunate to an innocent accused who must go through the stresses and costs associated with defending the case in court.

The Crown must also prove the 2nd element of the offence: intent to commit an indictable offence. While some offences such as mischief (property interference) can easily be alleged and used to press B and E charges, this does not mean that the court will agree that the behaviour rose to a criminal level. For example, if an ex breaks into their former house after a recent relationship break-up to watch TV alone this may not be enough for the court to find guilt even on a somewhat open ended, subjective charge such as mischief under $5000.

If you have been charged with a B and E offence you should contact a criminal lawyer immediately to discuss your case.

If you received a Form 10 Undertaking or have been released on Bail (Form 11 Release Order) with a return date for court you are being criminally charged and should contact a criminal lawyer immediately to start working on your defence. These cases are often quite defendable particularly if the accused does not admit to entering the home, building or commercial property.

Given the automatic life altering consequences upon a finding of guilt everything possible must be done to try to convince the Crown to drop or reduce the charges, or win an acquittal at trial.

---

You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with criminal offences throughout Ontario, Canada.

Have a skilled criminal lawyer who focuses on criminal law protect you and your future from the stigma and consequences of a criminal record and conviction.

Are you a lawyer? If you are defending a criminal case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

*2024 Results: the percentage of 99% of clients avoiding a criminal record (conviction) stated on this page is based solely on Lawyer Mark Zinck's personal representation of approximately 2000 criminal defence case clients as of the year 2024. Past results are not necessarily an indication of future results.

---