Break and enter is charged under section 348 of the Criminal Code and covers breaking into a place with intent to commit an indictable offence, or doing so and then committing one. Break and enter into a dwelling-house is treated as a straight indictable offence with a maximum of life imprisonment; break and enter into other premises is a hybrid offence, giving the Crown a choice of procedure.
- Break and enter is charged under section 348 of the Criminal Code.
- The offence covers breaking and entering a place with intent to commit an indictable offence, or breaking in and then actually committing one.
- Break and enter into a dwelling-house is treated as a straight indictable offence with a maximum penalty of life imprisonment.
- Break and enter into other premises (such as a business) is a hybrid offence, so the Crown chooses whether to proceed summarily or by indictment.
- Common defences include challenging identity, whether entry was genuinely unauthorized, and the intent element.
- Sentencing ranges widely based on whether the premises was occupied, the value involved, and the person's record.
The Offence Explained
Break and enter is charged under section 348 of the Criminal Code. It covers more than the classic image of forcing open a door — the offence captures breaking and entering a place with intent to commit an indictable offence inside, breaking and entering and then actually committing (or attempting) an indictable offence, or breaking out of a place after committing or attempting one inside.
“Breaking” is interpreted broadly and can include opening an unlocked door or window beyond the point it was left at, not just forcing entry. “Entering” can also be satisfied by only part of the body, or an instrument, crossing the threshold in some circumstances.
Dwelling-House vs. Other Premises
The single biggest factor in how a break and enter charge is handled is whether the premises is a dwelling-house — essentially, a place where someone lives, even temporarily.
| Premises Type | How It’s Prosecuted |
|---|---|
| Dwelling-house | Straight indictable offence; maximum penalty of life imprisonment |
| Other premises (e.g. business, warehouse) | Hybrid offence; Crown chooses summary or indictable procedure |
Because break and enter into a dwelling is deemed indictable with no Crown discretion to proceed summarily, these charges are treated as significantly more serious from the outset, regardless of what was actually taken or damaged.
Crown Election: Summary or Indictable
For break and enter into non-dwelling premises, the Crown decides whether to proceed summarily or by indictment, generally based on the seriousness of the circumstances, the value involved, and the accused’s record. A summary election carries a shorter maximum penalty than an indictable election, and this choice shapes the entire course of the proceeding, including which court handles it and what procedural rights apply.
For a full explanation of how this choice works more generally, see our guide on summary versus indictable offences in Ontario.
What the Crown Must Prove
To secure a conviction, the Crown generally must prove, beyond a reasonable doubt:
- That the accused broke into (or, in certain scenarios, broke out of) the place in question
- That the accused entered, even partially, without authorization
- That the accused acted intentionally, not accidentally or by mistake
- That the accused had the intent to commit an indictable offence inside, or actually committed or attempted one
Common Defences
Depending on the facts, a break and enter charge can be defended on several grounds:
- Identity — whether the accused was actually the person who entered the premises
- Authorization — whether entry was actually lawful, such as having a right or invitation to be present
- Intent — whether the required intent to commit an indictable offence existed at the time of entry
- Charter issues — whether evidence was obtained through an unlawful search or arrest
A person enters a vacant rental unit believing they still have a right to be there following a dispute with a landlord. Whether they had the required unlawful intent, as opposed to a genuine (even if mistaken) belief in a right of entry, can be central to the defence.
Sentencing Range
Sentencing for break and enter varies widely. Courts weigh whether the premises was a dwelling, whether it was occupied at the time, the value of property taken or damaged, the degree of planning, and the accused’s record. Dwelling-house break-ins, particularly where someone was home, are treated especially seriously because of the direct impact on personal safety and security, with denunciation and deterrence as paramount sentencing principles.
Facing a break and enter charge in Toronto or anywhere in Ontario? Call our Toronto criminal defence lawyers at 416-274-2222 for a free consultation.
Frequently Asked Questions
Break and enter is charged under section 348 of the Criminal Code. It covers breaking and entering a place with intent to commit an indictable offence inside, or breaking and entering a place and then actually committing an indictable offence while inside, or breaking out of a place after committing or attempting to commit an indictable offence.
No. While break and enter into a dwelling-house (a home) is the most serious category, the offence also applies to non-dwelling premises, such as a business, warehouse, or other building. The two categories are treated very differently in terms of how the Crown proceeds.
Break and enter into a dwelling-house is a straight indictable offence, meaning the Crown has no choice but to proceed by indictment, and it carries a maximum penalty of life imprisonment. Break and enter into other premises is a hybrid offence, giving the Crown discretion to proceed either summarily or by indictment depending on the circumstances.
The Crown must generally prove that the accused broke into the place (or entered without authorization in some circumstances), that this was done intentionally, and that the accused had the intent to commit an indictable offence inside, or actually committed or attempted one while inside.
Common defences include challenging the identification of the accused, arguing that entry was authorized or not a "break" in the legal sense, challenging whether the required intent existed at the relevant time, and raising issues with how evidence was gathered, including the lawfulness of any search.
Sentencing varies enormously based on whether the premises was a dwelling, whether anyone was home or present, the value of anything taken or damaged, and the person's criminal record. Courts place significant weight on denunciation and deterrence, particularly for dwelling-house break-ins, but outcomes genuinely depend on the specific facts.
In some circumstances, particularly for a first offence involving lower-value property and no one present, alternative resolutions such as diversion or a negotiated plea to a lesser charge may be available. This depends heavily on the specific facts and the Crown's position.