Markham Breaking & Entering Lawyer

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Not every break and enter is a house case. Warehouses, storage lockers, retail backrooms, construction trailers and office units sit in a different tier of section 348, where the Crown's first decision, indictment or summary conviction, shapes everything that follows. If the allegation is about somebody's home, start with our Markham break and enter page, which covers the dwelling charge and its life maximum. This page covers the rest: the commercial tier, the tools count, the disguise count, and how these files actually get defended in York Region. The full statute sits on our Ontario break and enter page.

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

The Tier That Is Not Life

Break and enter of a place other than a dwelling-house falls under section 348(1)(e) of the Criminal Code, and it is a hybrid offence. Prosecuted by indictment, it carries a maximum of 10 years. Prosecuted summarily, it runs on the lighter procedural track used for less serious matters. That hybrid character gets misstated constantly, including by people who should know better, so it is worth saying plainly: a commercial break and enter is not a life-maximum charge, and it is not automatically headed to a jury. What it is depends heavily on a decision the Crown makes early.

That decision is the election. When the Crown screens the file, it chooses the track, and the choice tells you a great deal. A summary election signals a file the Crown sees as resolvable: lower stakes, provincial court, tighter timelines. An election to indict signals the opposite: alleged sophistication, higher value, a record, or multiple locations. The election sets the sentencing ceiling, the court procedure and, practically, the tone of every conversation that follows.

Defence counsel is not a spectator to that choice. A lawyer who gets to the screening Crown early, with context the police synopsis left out, can sometimes influence the election itself, and can almost always position the file better for what comes after it. Week one is not too soon to start that conversation. In these files it is exactly when the conversation should happen.

That choice can be influenced. Before the Crown elects, defence counsel can put material on the table: gaps in the identification, proof that you held access rights, restitution that has already been made. On the right file, that early package is the difference between a summary prosecution and an indictable one. The point is timing. The election usually comes early, so the work that shapes it has to start immediately, not after a few court dates have drifted by.

What Counts as a Place Beyond a Home

Section 348 does not use the word building alone. It applies to any place, and section 348(3) defines that term with a short list. Mapped onto Markham's commercial geography, it covers more ground than people assume.

The statutory category	What it looks like in Markham	Tier
A building or structure, or any part of one	Shops, offices, industrial units, plaza storefronts, storage lockers, warehouse mezzanines, secure rooms inside open buildings	Non-dwelling, 10 year maximum by indictment
A railway vehicle, vessel, aircraft or trailer	Construction trailers, cargo and equipment trailers on job sites	Non-dwelling, same tier
A pen or enclosure where fur-bearing animals are kept commercially	Rare, but it is on the list	Non-dwelling, same tier
A dwelling-house	Homes, condo units, basement apartments	The life-maximum tier, covered on our residential page

Two details in that list do real work. Part of a building counts, so entering a locked stockroom inside a store you were allowed to be in can still be charged as break and enter. And trailers count, which is how job-site allegations over tools and materials end up charged under section 348 rather than as simple theft.

In practice, the fights are rarely about whether a warehouse is a building. They happen at the edges: a fenced yard with no structure on it, a trailer that has sat unhitched behind a plaza for a year, a shared stairwell nobody clearly controls. If the space does not fit section 348(3) cleanly, the entry count itself is in doubt, and a careful defence checks that fit before anything else.

Breaking Without Breaking Anything

Clients say it in the first meeting all the time: nothing was broken, so how is this breaking and entering? Because the Criminal Code does not require damage. Section 321 defines break two ways: breaking any part of a place, internal or external, or opening any thing that is used or intended to close or cover an opening. Pushing open a closed but unlocked door is a break. So is sliding a window that was already ajar.

Section 350 goes further. Entry is complete as soon as any part of your body, or any part of an instrument you are using, crosses the threshold. And the section deems entry to be breaking and entering, with no physical break at all, where entrance was obtained by a threat, by artifice, by collusion with a person inside, or without lawful justification through a permanent or temporary opening.

In commercial settings, that language covers the fact patterns police actually charge:

• A loading-dock door propped open overnight, walked through without permission.
• Tailgating an employee through a fob-controlled door into a secure area.
• Talking your way past reception under a pretext, which is the artifice branch.
• Reaching through a service hatch or window with a hand or a tool, which completes entry even if your feet never leave the pavement.

The flip side matters just as much. These deeming provisions have edges, and files get won at those edges: whether the opening was one the section actually covers, whether there was lawful justification, whether what happened amounts to artifice or just an unlocked door and an assumption. No damage does not mean no break. It also does not mean the Crown's version survives scrutiny.

The Tools Count: What Section 351 Actually Requires

The charge that surprises people most in this family is possession of break-in instruments under section 351(1). It is a hybrid offence with a 10 year maximum by indictment, and you can face it without any allegation that you entered anything. The section covers possession of an instrument suitable for breaking into any place, motor vehicle, vault or safe, in circumstances that give rise to a reasonable inference that the instrument has been used or was intended to be used for that purpose.

Read that definition again, because both halves matter. Suitable for breaking in describes half the contents of any contractor's truck: pry bars, picks, bolt cutters, screwdrivers, a dent puller. What separates a hardware inventory from a criminal charge is the knowledge and purpose element. The Crown must prove the criminal connection beyond a reasonable doubt, usually by inference from circumstances: the hour, the location, concealment, modified tools, gloves and masks alongside, or proximity to a fresh entry.

That is why the trades problem runs through these files. Electricians, locksmiths, glaziers, demolition crews and auto techs carry exactly the equipment the section describes, every day, lawfully. For a person in the trades, the defence often writes itself once the work records, invoices and site addresses are assembled. We gather that material early and put it in front of the Crown before the election, not after.

How does that knowledge get proven? Almost always by inference. The tools sat in a bag with gloves and a flashlight. The truck was parked behind the plaza at three in the morning. A pick set turned up beside a damaged lock. Each of those facts invites a criminal explanation, and each has an innocent competitor that fits the same evidence: a trade that uses the same tools every day, a shortcut home, equipment bought secondhand. The Crown needs the criminal reading to be the only reasonable one, and keeping the innocent explanation alive, concretely and credibly, is what wins these counts.

The Disguise Count

Section 351(2) creates a separate offence: having your face masked or coloured, or being otherwise disguised, with intent to commit an indictable offence. Like the tools count, it is hybrid with a 10 year maximum by indictment. It shows up in commercial files because of CCTV: a camera catches a covered face near a break-in, and the disguise count gets added to the sheet.

The battleground is intent, not the covering. A balaclava in a Markham January is winter clothing. A medical mask is a medical mask. A hood up at night is a hood up at night. None of that is criminal by itself, and the Crown cannot get there by pointing at the covering alone. What it needs is proof that the disguise was worn with intent to commit an indictable offence, which usually collapses into the same intent fight running through the rest of the file. Where the entry count fails, the disguise count tends to fail with it.

These counts also rise and fall with the footage itself. A camera that catches a covered face for a few seconds at night proves that someone hid their face, not who that person was or what they intended. When the disguise count is carrying an otherwise thin identification case, that is usually a sign the file has a proof problem, and it is worth pressing.

People With Keys: Employees, Contractors and Colour of Right

A steady share of commercial break and enter files in York Region involve people who were never strangers to the building: the employee let go on Friday whose fob still worked on Sunday, the contractor who went back for tools after a payment dispute, the business partner locked out mid-falling-out.

Two defence concepts do the heavy lifting here. The first is lawful access. If you had authority to enter, there is no break in the legal sense, and the artifice and justification branches of section 350 have to be measured against what you were actually permitted to do. Access rights after a termination or during a shareholder dispute are often genuinely unclear, and criminal court is a poor place to resolve employment law by inference.

The second is colour of right. Entering to retrieve tools, equipment or records you honestly believed were yours undercuts the intent to commit an indictable offence, in the same way it does in the residential files described on our dwelling page. The honest belief does not have to be correct. It has to be genuinely held, and it has to be about a legal entitlement rather than a grievance.

If this is your situation, preserve everything now: the termination emails, the fob logs if you can get them, texts about the tools or the money, the name of whoever told you it was fine to drop by. These files are won on paper trails, and paper trails degrade fast.

What makes these cases winnable is documentation. Employment agreements, texts with a supervisor about tools left on site, a record of unpaid wages, an access code that was never cancelled: all of it feeds an honest-belief defence that undercuts the intent element. What makes them losable is talking. An explanation given at the door, without advice, has a way of hardening into the version the Crown builds its case around. Collect your records, say nothing substantive, and let counsel present it properly.

When a Business Address Becomes a Dwelling Case Anyway

One boundary issue can transform a commercial file, and it needs to be checked in week one. The Criminal Code counts any part of a building occupied as a residence as a dwelling-house. Markham is full of mixed-use buildings: plazas with apartments above the storefronts, live-work units, a caretaker suite tucked inside an industrial building. If the Crown can frame the entered place as a dwelling, the charge jumps tiers, from a 10 year hybrid to a straight indictable count with a life maximum.

Which tier applies is not a technicality. It changes the maximum, the election structure, bail dynamics and the entire negotiating posture of the file. Where the residential framing is arguable, counsel tests it immediately: what part of the building was actually entered, was that part occupied as a residence, and did the alleged entry have anything to do with the residential portion at all. The dwelling side of this line is covered in depth on our Markham break and enter page.

The Evidence Trail in a Commercial Break-In

Commercial files are built from systems rather than eyewitnesses, and every system in the chain has failure modes worth knowing.

Alarm and sensor logs. They record that a zone tripped and when. They do not record who, why, or whether a door left unsecured did the tripping. Alarm records also get read selectively; the full log sometimes tells a different story than the excerpt in the synopsis.

Fob and access-card records. A fob event proves a card was used, not who held it. Cards get shared, cloned, borrowed and left in trucks. In workplaces these records also cut the other way, showing a history of lawful after-hours access that supports colour of right.

Commercial CCTV. Coverage is patchy, angles are high, night compression is heavy, and retention is limited, with older footage overwritten quickly. That cuts both ways: the clip that might have cleared you can vanish just as fast as the one that implicates. Defence preservation requests go out immediately for exactly this reason.

Inventory and continuity. The Crown must connect specific missing stock to you, and warehouse counts are notoriously loose. A discrepancy report generated days later is not continuity; it is bookkeeping.

Tool-mark comparison. Where a pry mark gets matched to a recovered tool, the match is opinion evidence with real limits, and it gets tested like any other expert claim.

The pattern across all five: these records look objective, and juries treat them that way, but each one is an inference dressed as a fact. Finding the gap between what the system recorded and what the Crown says it proves is the core of the defence in this tier.

Two quieter proof lines deserve attention in these files. The first is continuity: the Crown must connect any property said to be stolen to the entry itself, through seizure records and identification that actually hold together, and inventory counts taken days later by a manager under pressure are softer evidence than they first appear. The second is tool-mark comparison, which sounds forensic but often comes down to an opinion that a mark is consistent with a class of tool sold in every hardware store. Both get tested, and neither deserves the automatic weight it tends to get in a police synopsis.

Bail and Conditions That Let You Keep Working

Most people charged in the non-dwelling tier are not detention candidates. Many are released at the station on an undertaking. Those who are held go to a bail hearing at the Newmarket courthouse at 50 Eagle Street West, after processing that typically runs through York Regional Police 5 District at 8700 McCowan Road. In the ordinary case the Crown bears the onus, and the realistic fight is not over release but over conditions.

Conditions in commercial files have a particular sting because they collide with livelihoods. A blanket stay-away from the plaza where the allegation arose can also be a stay-away from your own workplace. A no-contact order naming a former employer can make a wage claim or a tools-return arrangement impossible. A curfew can end a night-shift job. None of that serves anyone, and courts will listen when the defence proposes precise terms instead: a stay-away carved around work hours, communication through counsel only, exceptions for retrieving equipment with notice.

The time to raise workability is at the hearing, not after a breach. A condition you cannot live with is a trap, because a breach charge is new jeopardy on top of the original file. If a term is already causing problems, a variation application through counsel, or with Crown consent, is the safe route. Our Markham bail lawyer page covers the process in detail.

Conditions are also not fixed forever. If a stay-away term turns out to cover the plaza where your new job is, or a no-contact term blocks a co-worker you need to deal with, counsel can seek a variation with the Crown's consent or before the court. What you cannot do is quietly bend the term, because a breach charge is a new criminal allegation that arrives with its own bail problem and makes every later argument harder. Ask for the change before you need it.

Where the Non-Dwelling Tier Resolves

This tier resolves along a wider spectrum than people fear on day one. Files evaporate at screening where identity rests on a grainy camera and a guess. Tools counts get withdrawn once work records explain the equipment. Files with real evidence but low sophistication resolve on the summary track, sometimes to lesser property counts, in appropriate cases with restitution doing much of the talking. And contested trials in this tier are won regularly, because system evidence cross-examines poorly.

What a conviction means for you depends on your record, your immigration status and your industry; a property offence conviction can matter to licensing bodies, bonding and border crossings, so resolution design has to look past the courtroom. General framing only: no lawyer can promise an outcome, and the honest ones say so. What tilts outcomes is early engagement, because the Crown election happens near the start and shapes everything after it. Theft-side charges often travel with this tier; our Ontario theft defence page covers that family.

One more practical point about endings: a resolution designed early is worth more than one accepted late. Once a matter is set for trial, positions harden and options narrow. The window where a non-dwelling file resolves on sensible terms is real, but it does not stay open on its own. Someone has to work it.

Why Kazandji Law for a Markham Breaking and Entering Charge

Kazandji Law defends break and enter, break-in instrument and disguise allegations across York Region from four offices: Thornhill at 7191 Yonge Street, Suite 310, minutes from Markham, plus Toronto at 180 John Street, Unit 320, North York and Oakville. Founding partner Fadi Matthew Kazandji built the firm's criminal defence practice around a simple discipline: test every element the Crown must prove before talking about what to concede.

On a commercial entry file, that means engaging the Crown election early, preserving and picking apart the CCTV and access records, isolating the knowledge element on any tools count, and shaping conditions so you can keep working while the case is fought. Markham files run through the Newmarket courthouse at 50 Eagle Street West, and we appear there constantly.

You will not be handed a script or passed to an assistant. You get a lawyer who reads the disclosure line by line, tells you plainly which counts have legs, and puts the Crown to its proof on the ones that do not.

This page is legal information for people facing breaking and entering 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.