Markham Break and Enter Lawyer

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Most Markham break and enter files do not start as burglaries. They start as a dispute with an ex over property that ends at a front door, the wrong townhouse at 2 a.m., a shared-house argument that somebody reports. The charge sheet still reads break and enter dwelling-house, and the maximum sentence on that charge is life imprisonment. This page explains how the dwelling side of Ontario break and enter law actually plays out for people charged in Markham, and what a Markham criminal defence lawyer can do about it at each stage.

By Fadi Matthew Kazandji, Founding Partner, Kazandji Law. Updated July 2026.

The Law in One Table: Charge, Election, Maximum

Section 348 of the Criminal Code does not describe one offence. It describes a family of them, and the fact that matters most is what kind of place you are said to have entered. A home puts you in the most serious property offence in the Code. Anything else puts you in a lower tier with different rules from day one. Here is the map.

Charge	Who elects	Maximum	Where the fight usually is
Break and enter a dwelling-house, s. 348(1)(d)	Straight indictable. The accused chooses the court	Life imprisonment	Intent, identity, and whether the place was truly a dwelling
Unlawfully in a dwelling-house, s. 349	Hybrid. The Crown chooses first	10 years by indictment	Lawful excuse, and what you were doing there
Break and enter a place other than a dwelling, s. 348(1)(e)	Hybrid. The Crown chooses first	10 years by indictment	The Crown election, and the intent evidence
Possession of break-in instruments, s. 351(1)	Hybrid. The Crown chooses first	10 years by indictment	Whether you knew what the tools were for

This page deals with the dwelling lane, because that is what most Markham clients are actually facing. If your charge involves a shop, a warehouse, a storage unit or a tools count, enough changes that we built a separate page for it: our Markham breaking and entering page covers the non-dwelling tier. For the full statutory walk-through of every provision in the family, see our Ontario break and enter page.

Is a Markham Townhouse, Condo or Basement Apartment a Dwelling-House?

Almost always, yes. Section 2 of the Criminal Code defines a dwelling-house as the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence. The definition was written broadly on purpose, and it maps onto Markham housing without much strain.

• Detached homes, semis and townhouses are the obvious cases.
• A condo unit is a dwelling-house even though the tower as a whole is not. So is a rented room in a shared house.
• A basement apartment counts on its own, because any part of a building occupied as a residence qualifies.
• A cottage counts as a temporary residence. So does a trailer or mobile unit somebody is living in.
• An attached garage connected to the house by a doorway is generally treated as part of the dwelling.

Why does the label matter so much? Because it alone moves the maximum from 10 years to life. The same act, stepping through the same door with the same intent, becomes a fundamentally different charge depending on whether someone lives on the other side of it. So defence counsel looks hard at the dwelling designation in the edge cases: vacant houses mid-renovation, units used for storage rather than living, spaces nobody ever really occupied. The designation is an element the Crown has to prove, not a box it gets to tick.

How Markham Dwelling Files Actually Start

Run enough of these cases and you notice the same handful of openings, over and over. Very few Markham dwelling files begin with a stranger and a crowbar. Most begin with something more human, and each opening points at its own legal battleground.

The ex-partner's place. A relationship ends and property stays behind. Someone goes to collect a laptop, documents, the dog, and the entry gets reported. The battleground is colour of right: an honest belief in a legal claim to the property can defeat the intent the Crown must prove. The texts, the receipts and the history between the parties become the case.

The wrong door. Markham subdivisions repeat the same floor plans street after street, and at 2 a.m. people genuinely do walk to the wrong townhouse. The battleground is intent and honest mistake. What you did once inside, and how you reacted when the mistake became obvious, usually matters more than the entry itself.

Shared houses and lockouts. Basement tenants, roommates, extended families splitting one house. Someone changes a lock mid-dispute, and someone else forces the door they believe they are entitled to use. The battleground is lawful excuse and access rights: who actually had the right to enter that part of the building.

The party or the dare. Young people, a house believed empty, a decision nobody thought about for more than a minute. The battleground is intent, and often identity, because these files tend to rest on shaky nighttime observations of a group.

The alleged targeted break-in. The classic allegation: a house entered while the owners were away, property gone, nobody home to see it. Here the fight is identity and continuity. No one saw a face. The case gets built from fragments, and fragments can be tested.

Everything below comes back to these five openings, because how a file starts usually tells you where it will be won.

The Intent Shortcut, and What Answers It in Practice

Break and enter requires the Crown to prove you meant to commit an indictable offence inside. Parliament handed prosecutors a shortcut: under section 348(2), proof of the break and entry is itself evidence of that intent, in the absence of evidence to the contrary. In plain terms, once the Crown proves the break-in, the intent element can be presumed unless something in the evidence answers it.

The Supreme Court of Canada dealt with this in R. v. Proudlock, and its holding matters for every one of the openings above. You do not have to prove your innocent explanation. You do not have to establish anything at all. Evidence capable of raising a reasonable doubt about your intent is enough to answer the presumption. But there is a catch that catches people: an explanation the court flatly disbelieves is not evidence to the contrary. A rejected story leaves the presumption standing.

That is why we build the defence evidence plan around intent from day one. Depending on the opening, it draws on:

• Colour of right: the honest belief you had a legal claim to the property you went to retrieve.
• Evidence of intoxication, where it bears on the specific intent this charge requires.
• The objective record: messages sent before the entry, what was and was not touched inside, how you behaved when confronted.
• Witnesses to the dispute, the invitation or the arrangement the Crown does not know about yet.

The practical takeaway is blunt. Do not try to talk your way out at the scene or in the interview room. An explanation given badly, then disbelieved, is worse than silence. Preserve everything, and let counsel decide how your answer to the presumption gets presented, and when.

When the Right Answer Is Section 349, Not Section 348

The Code contains a lesser cousin of dwelling break and enter: section 349, being unlawfully in a dwelling-house. It applies to a person who, without lawful excuse, enters or is in someone's home with intent to commit an indictable offence there. Unlike the dwelling break and enter charge, it is hybrid, with a 10 year maximum by indictment or a summary route, and it carries its own presumption of intent in section 349(2).

Section 349 does real work in two situations. First, cases where there was no break in any legal sense and the evidence of intent at entry is thin. Second, and more often, resolutions. A dwelling break and enter that grew out of a drunken mistake or a domestic property dispute sometimes resolves as a section 349 matter, which changes the maximum, the process and the way the outcome reads afterward. Whether that trade makes sense in your file depends on how strong the intent evidence really is, which is exactly what the last section was about.

One caution about the lesser lane. Agreeing to plead to anything, even a lighter charge, is still a conviction with lasting consequences, and it forecloses defences that might have won outright. The section 349 route makes sense when the evidence supports it and the alternative risk is real. It makes no sense as a shortcut taken in week two because the charge sheet looks frightening. The order of operations is always the same: read the disclosure first, measure the intent evidence against the openings described above, then decide whether this is a file to resolve or a file to fight.

If the House Was Occupied

Everything on this page assumes the allegation is about entering a home. Where the allegation is that people were inside, that you knew or were reckless about that, and that violence or threats were used against a person or property, the file changes character. Sentencing law treats that combination as home invasion under section 348.1, a mandatory aggravating factor on conviction, and robbery counts often join the charge sheet. We cover that territory separately on our Markham home invasion page and our Markham robbery page. If your paperwork includes robbery or forcible confinement counts, start there.

Talking to York Regional Police About an Entry Allegation

Most people charged with a dwelling entry in Markham have never been arrested before, and their instinct is to explain. The officer seems reasonable. The story feels obviously innocent. It was your ex's house and your own property; it was the wrong door and an honest mistake. Why not just clear it up?

Here is why not. This charge lives and dies on intent, and section 348(2) means the Crown starts with a presumption in its pocket. Anything you say becomes the fixed version of events the rest of the case gets measured against. Said cleanly, with dates and context and nothing missing, an innocent explanation can be powerful. Said at 3 a.m., stressed, without the messages in front of you, it comes out incomplete. And an incomplete account that later shifts, even honestly, reads as a lie. Remember what Proudlock teaches: a disbelieved explanation is not evidence to the contrary. A statement that damages your credibility can convert a winnable intent defence into a losing one.

You have the right to remain silent and the right to counsel before and during questioning. Using both is not evidence of guilt, and no judge will hold proper reliance on them against you. In practice:

• Give your name and identifying information, then say clearly that you wish to speak with a lawyer and will not be answering questions.
• Expect the interview to continue after the call with counsel. Police are allowed to keep asking. Your rights do not evaporate because the questions keep coming.
• Do not consent to a phone search or hand over passcodes without legal advice. Your messages may end up mattering, and counsel will decide how and when they surface.
• Write down your own account privately for your lawyer while it is fresh: times, routes, who knew you were coming, what you touched.

Bail at Newmarket for a Dwelling Charge

Markham arrests are handled by York Regional Police, and processing typically runs through 5 District at 8700 McCowan Road. Some people are released at the station on an undertaking with conditions. If you are held instead, your bail hearing happens at the Newmarket courthouse at 50 Eagle Street West, the building that handles York Region criminal matters at both court levels.

Break and enter is not one of the rare offences reserved for Superior Court bail, so the hearing runs in the Ontario Court of Justice. And in the ordinary case the Crown bears the onus of showing why you should be detained or tightly restricted. People hear the words life maximum and assume the burden flips against them. It does not. The reverse-onus triggers that actually matter here are specific:

• You are charged with an indictable offence allegedly committed while you were already on release for another indictable offence.
• The allegation is breaking in to steal a firearm, which engages its own reverse-onus provision.
• You are not ordinarily resident in Canada.

Outside those situations, preparation usually decides the hearing. That means a surety who understands the job and can speak to supervision, a residence plan the court can accept, and realistic conditions proposed by the defence before the Crown proposes worse ones: no contact with the complainant, no attendance at the address, sometimes a curfew shaped around your work. A dwelling charge with a personal backstory, which is most of them in Markham, is usually a releasable charge with the right plan. We prepare sureties the night before, not in the hallway.

Judge or Jury: How the Election Plays Out at Newmarket

Because dwelling break and enter is straight indictable, the election belongs to you, not the Crown. You can be tried in the Ontario Court of Justice, in the Superior Court of Justice by judge alone, or in the Superior Court with a jury. And because the charge carries a maximum well past the 14 year threshold, a preliminary inquiry is available if you elect the Superior Court, which gives the defence a chance to test the Crown's key witnesses under oath before any trial.

How does the choice get made? It turns on the file. An identity case built on weak nighttime observation may benefit from a preliminary inquiry that pins witnesses to their first version of events. A colour-of-right case with a sympathetic backstory can play differently to a jury than to a judge alone. A file the Crown has overcharged may be best pushed quickly to trial in the provincial court. At Newmarket the logistics are simple, because the Ontario Court of Justice and the Superior Court sit at the same Eagle Street address; the election changes the courtroom and the procedure, not the commute.

There is no default answer, and the election should never be made reflexively at a first appearance. It is a strategic decision made after disclosure has been read.

Doorbell Cameras, Fingerprints and Phone Data: Where the Proof Breaks Down

A Markham dwelling prosecution is usually a circumstantial construction, and each brick in it has known failure modes.

Doorbell and neighbour cameras. Subdivisions are dense with doorbell and driveway cameras, so most files include some footage. Look closely at what it really shows: often a hooded figure at night, filmed through a wide-angle lens at distance. Identification from that kind of image is exactly what courts are told to treat with caution.

Fingerprints. A print proves contact, not timing. A print on an exterior door frame, a mailbox or a window can predate the entry innocently, especially where the parties know each other. In Markham files, they usually do.

Phone location data. Tower and account records place a phone in an area, not a person in a house. The claimed precision gets argued about, and the gap between the two is defence territory.

Property continuity. The Crown must connect the item found with you to the item taken from the house, serial number by serial number, photograph by photograph. Generic property, cash or undocumented jewellery breaks that chain more often than people expect.

Eyewitnesses at night. Brief observation, stress, poor lighting, and suggestion from a neighbourhood social media thread that had already named a suspect. Each is a recognized frailty, and they compound.

None of this means every case falls apart. It means every case has pressure points, and the job is finding the ones that exist in yours before the first Crown pretrial, not after.

Endings That Do Not Define You

Dwelling break and enter sounds like an ending in itself. In practice, Markham files land across a wide range. Charges get withdrawn where the intent evidence collapses, where identification cannot survive scrutiny, or where the entry was the messy tail of a personal dispute the complainant no longer wants criminalized. Some files resolve to lesser property counts or to a section 349 matter, with consequences that look nothing like the original charge sheet. Others need to be fought, and are won at trial on the presumption, the identification or the continuity evidence.

Some honesty is owed here too. A conviction in the dwelling tier is serious, and its consequences reach past the sentence into criminal records, travel and, for non-citizens, immigration status. Nobody should promise you a particular outcome, and you should be wary of anyone who does. What can be promised is process: the intent presumption gets answered rather than accepted, the proof of entry gets tested rather than assumed, and no resolution gets signed before the disclosure has been read line by line.

Timing matters as much as destination here. The strongest resolutions tend to happen after defence counsel has done the early work: the preservation requests, the witness statements, the paper trail on colour of right. Crowns respond to files where the weaknesses have been found and documented, not to bare requests for leniency. That is another reason the first weeks matter more than most clients expect.

Why Kazandji Law for a Markham Break and Enter Charge

Kazandji Law is a criminal defence firm built around founding partner Fadi Matthew Kazandji. Break and enter files reward early, unglamorous work: preservation requests before footage gets overwritten, surety preparation before the hearing, a working theory of the intent evidence before anyone sits down with the Crown. That is how we run these cases.

• Thornhill office, minutes from Markham. 7191 Yonge Street, Suite 310, serving Markham and all of York Region, with a straight run up to the Newmarket courthouse.
• Toronto headquarters. 180 John Street, Unit 320, in the downtown core.
• North York and Oakville offices for clients across the GTA.
• Free consultation. Your first conversation with us costs nothing and stays confidential.

Wherever your file stands, from a first call by police to a set trial date, the earlier we see it, the more we can do with it.

Markham Break and Enter FAQ

This page is legal information for people facing break and enter allegations in Markham and York Region, not legal advice about any specific case. Criminal Code provisions are summarized as of the July 2026 update of this page, and every file turns on its own facts. For advice about your situation, contact Kazandji Law for a free consultation at 647-588-3234.