Break and Enter Lawyer Ontario

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Break and enter is the property charge Ontario courts treat most seriously. Where the place is a dwelling-house, section 348(1)(d) of the Criminal Code carries a maximum of life imprisonment, heavier than many violent offences, and even a commercial break-in exposes you to a ten-year maximum and a permanent record. Yet most of the people who call us are not professional burglars. They walked into an ex-partner's garage to take back their own property, opened the wrong apartment door after a night out, or re-entered a workplace after a dispute. Kazandji Law defends break and enter charges across Ontario, and the earlier we get involved, the more of the story we can change.

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

Why Ordinary People End Up Facing Ontario's Most Feared Property Charge

Ask most people to picture a break and enter and they imagine a masked stranger prying open a window at 3 a.m. Ontario courtrooms tell a different story. The break and enter dockets in Toronto, Newmarket, Brampton and Oshawa are full of people who never thought of themselves as burglars: a man who went into his former partner's garage to retrieve a lawnmower he honestly believed was his, a student who was intoxicated and pushed open the door of the wrong unit in his own building, an employee who came back after hours to collect tools from a shop floor in the middle of a wage dispute, a teenager dared into a vacant house.

Police called to any of those scenes rarely sort out ownership, honest belief or confusion on the spot. If there is evidence you entered a place you had no clear right to be in, section 348 of the Criminal Code is the charge that gets laid, and everything difficult about it, the intent presumption, the dwelling-house penalty, the bail conditions that can keep you out of your own neighbourhood, arrives at once. A residential break and enter allegation is treated as a priority by every police service in the province, and investigators will often canvass doorbell cameras, seek warrants for phones and move quickly to an arrest.

The stakes escalate just as quickly. Break and enter of a dwelling-house is a straight indictable offence with a maximum of life imprisonment. A conviction of any kind creates a criminal record that follows you into employment screening, travel and immigration processes. And the first hours matter more than almost anything that happens later: what you say at the door or in the cruiser frequently becomes the Crown's best evidence of intent. You have the right to remain silent and the right to counsel. Use both, and call a criminal defence lawyer before you try to explain anything to anyone.

The Three Ways Section 348(1) Can Be Committed

Section 348(1) is wider than most people expect. It creates three distinct routes to liability, and which one appears in your charging document changes what the Crown has to prove and where the defence pressure points are.

Branch	What it alleges	What the Crown must prove
s.348(1)(a), with intent	Breaking and entering a place with intent to commit an indictable offence inside	The break, the entry, and the intent at the time of entry. No offence needs to actually be committed inside, the intent alone completes this branch.
s.348(1)(b), commits	Breaking and entering a place and actually committing an indictable offence inside	The break, the entry, and the commission of the indictable offence, usually theft, sometimes assault or mischief.
s.348(1)(c), breaks out	Breaking out of a place after committing an indictable offence inside, or after entering with intent to commit one	That the accused was inside, that an offence was committed or intended, and the breaking out.

Most Ontario charges are laid under the first two branches. The breaking-out branch surprises people: someone who slipped in through an open loading door and then pushed through a locked exit has still committed break and enter. In every version, the alleged indictable offence inside is usually theft, which means the defences that attack intent, ownership and honest belief do most of the work in these files.

What Legally Counts as Breaking, and What Counts as Entering

The words in the charge sound violent, but the legal definitions are almost startlingly gentle. Under section 321 of the Criminal Code, to break means to break any part, internal or external, or to open any thing that is used or intended to be used to close or to cover an internal or external opening. Turning the handle of a closed but unlocked door is a break. Sliding open an unlatched window is a break. Nothing needs to be damaged, forced or pried.

Section 350 goes further and deems certain entries to be breaking and entering even when nothing was opened at all. Entry obtained by a threat, by trickery, or by collusion with someone inside the place counts. So does entry without lawful justification or excuse through a permanent or temporary opening, a doorway already standing open, a gap in a construction hoarding, a window with the glass already gone. The same section settles how little movement is needed: a person enters as soon as any part of their body, or any part of an instrument they are using, is inside the place. A hand reaching through a window frame is a complete entry; so is the tip of a pry bar.

Because the definitions are so broad, the real battleground in an Ontario break and enter case is rarely whether a door was technically opened. It is what you intended, what you honestly believed, and whether the Crown can prove either of those things beyond a reasonable doubt.

What Counts as a Place, and Why a Dwelling-House Changes Everything

Section 348(3) defines the places that can be broken into for both s.348 and the instrument offence in s.351: a dwelling-house; a building or structure or any part of one; a railway vehicle, a vessel, an aircraft or a trailer; and even a pen or enclosure where fur-bearing animals are kept for breeding or commercial purposes. A construction trailer, a parked rail car and a moored boat are all places.

The definition that drives sentencing is dwelling-house. Under section 2 of the Criminal Code it means the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence, and it expressly includes a building within the curtilage that is connected by a doorway or a covered and enclosed passageway, and a mobile unit used as a residence. Houses, apartments, condominium units, cottages and occupied trailers all qualify. A garage connected to the house can qualify; a detached shed generally does not.

This is why the residential-versus-commercial question matters more than any other early fact in the file. The same conduct, the same opened door, the same few steps inside, is a hybrid offence with a ten-year ceiling if the place was a shop, but a straight indictable offence with a maximum of life imprisonment if the place was where someone lives, even temporarily. Whether the Crown can actually prove the place met the dwelling-house definition on the date alleged is a live issue, not a formality: vacant properties, units under renovation and seasonal buildings sit right on the legal line.

Penalties: Dwelling-House vs Non-Dwelling Break and Enter

Charge	Procedure	Maximum penalty
Break and enter, dwelling-house, s.348(1)(d)	Straight indictable	Life imprisonment
Break and enter, place other than a dwelling-house, s.348(1)(e)	Hybrid. Crown elects indictment or summary conviction	10 years on indictment; a lower maximum if the Crown proceeds summarily
Unlawfully in a dwelling-house, s.349	Hybrid	10 years on indictment
Possession of break-in instruments, s.351(1)	Hybrid	10 years on indictment

Two features of this table shape defence strategy. First, non-dwelling break and enter is hybrid, a point that is frequently misstated. The Crown's election between indictment and summary conviction is an early pressure point, and persuading a prosecutor to proceed summarily on a commercial entry with modest loss can transform the exposure and the pace of the case. Second, the dwelling-house branch has no summary option at all. Everything about a residential allegation is heavier: the available sentence, the Crown's bail position, and the willingness of prosecutors to resolve.

The sentence is only part of the damage. A break and enter conviction is a dishonesty-and-intrusion offence in the eyes of employers, licensing bodies and border officials. It can end careers in security, trades that require bonding, health care and finance; it complicates entry to the United States; and for anyone who is not a Canadian citizen it can put permanent residence, work permits and future citizenship applications at serious risk. Sentencing ranges inside the maximums vary enormously with the facts, occupied home at night versus empty storefront, and with the person, which is why the story we build about you matters as much as the story the Crown tells about the entry.

The Intent Presumption: Section 348(2) and the Proudlock Rule

Intent is the element the Crown usually cannot see, and Parliament gave prosecutors a statutory shortcut for it. Under section 348(2), evidence that you broke and entered a place, or attempted to, is proof that you did so with intent to commit an indictable offence inside, in the absence of any evidence to the contrary. The breaking-out branch has a matching presumption. In practical terms: once the Crown proves the entry, it does not have to call a single additional witness on intent. The presumption carries that element for them unless something in the evidence pushes back.

This single subsection explains how these cases are actually fought. A credible account of seeking shelter, retrieving your own property, confusion about the address, or intoxicated mistake can collapse the Crown's case on intent. A shaky story that falls apart in cross-examination does worse than nothing. Deciding whether you testify, and building the objective evidence that supports the innocent explanation before anyone hears it, is the core strategic work of a break and enter defence.

Related and Add-On Charges That Travel With Section 348

A break and enter information rarely arrives alone. These are the companions we see most often in Ontario courthouses, and each changes the shape of the case.

Charge	What it captures	Why it matters
Unlawfully in a dwelling-house, s.349	Being in a dwelling-house without lawful excuse with intent to commit an indictable offence. Hybrid, 10 years on indictment, with its own intent presumption in s.349(2)	No break required. Often the realistic landing spot when a s.348(1)(d) charge over-states what happened
Possession of break-in instruments, s.351(1)	Possession, without lawful excuse, of any instrument suitable for breaking into a place, motor vehicle, vault or safe, knowing it has been or is intended to be used for that purpose. Hybrid, 10 years on indictment	Screwdrivers and pry bars are lawful tools. The knowledge-and-purpose element and the lawful-excuse question are where these counts fail
Disguise with intent, s.351(2)	Having your face masked, coloured or otherwise disguised with intent to commit an indictable offence. Hybrid, 10 years on indictment	Frequently stacked onto B and E counts based on hoods and masks; intent is again the battleground
Home invasion, s.348.1	Not a standalone charge. A mandatory aggravating factor at sentencing where the dwelling was occupied, the offender knew or was reckless as to occupation, and violence or threats to people or property were used	Drives sentences up sharply on conviction, but it appears on the indictment as break and enter or robbery, not as a separate count
Breaking and entering to steal a firearm, s.98	A distinct indictable offence where the thing targeted is a firearm	Also a reverse-onus trigger at bail, one of the few break-and-enter scenarios where the onus truly shifts

Where violence or a demand accompanies the entry, the Crown may instead charge robbery, which is a different offence with different elements, see our Toronto robbery lawyers page for how those cases differ. Getting the charge right, and getting over-charged counts pared back, is often the first quiet victory in a file.

Defences That Win Break and Enter Cases

Colour of right. Most break and enter allegations are theft allegations at their core, and an honest belief in a legal right to the property or the place defeats them. The client who took back the lawnmower he genuinely believed was his from an ex-partner's garage did not intend to steal; a genuine, even mistaken, belief that you were entitled to enter or to take what you took removes the dishonest intent the Crown needs.

No intent: intoxication and mistake. Break and enter with intent is a specific-intent allegation. A person who was intoxicated and genuinely believed he was walking into his own apartment, or entered the wrong townhouse on an identical street, may simply lack the intent to commit any offence inside, though a charge under s.349 may still have to be answered, and we prepare for both.

Identity and continuity. Many B and E prosecutions are identification cases: a figure on grainy CCTV or a doorbell camera, a fingerprint on a window frame that could have been left at any time, property recovered days later from someone else's hands. Attacking the identification, the timing of the forensic traces and the continuity of the recovered property is classic, effective defence work.

Alibi and the innocent explanation. Because of the s.348(2) presumption, an innocent explanation supported by objective evidence, messages, receipts, location data, witnesses, is worth far more than one delivered cold from the witness box.

Charter breaches. These investigations move fast: warrantless entries into homes, searches of phones and vehicles, arrests on thin grounds, statements taken before access to counsel. Violations of sections 8, 9 and 10(b) of the Charter can result in the exclusion of the very evidence the Crown needs, and we litigate those applications aggressively.

The Evidence in Ontario Break and Enter Prosecutions, and Where It Breaks Down

Modern B and E files are built from the same handful of components, and each has known failure points. Doorbell and surveillance video is everywhere in Ontario subdivisions and commercial strips, but it is often low-resolution, poorly lit and time-stamped wrong; it shows that someone entered, not reliably who. Fingerprints and DNA prove contact with a surface, not when the contact happened, a print on an exterior door of a store you have shopped at proves very little. Tool-mark comparisons are only as strong as the examiner's assumptions. Cell-tower and GPS data place a phone in a neighbourhood, not a person through a window. And the continuity of recovered property, who found it, where, and how it was handled, is a chain that breaks more often than juries expect.

Disclosure is where we take the Crown's case apart piece by piece: the full occurrence reports, officers' notes, the video in its original format, forensic bench notes, the warrant materials used to search phones and homes. Cases are withdrawn or gutted when the disclosure reveals shortcuts in how evidence was collected. And where the proof of the entry is solid but the picture is less sinister than the charge suggests, that same record becomes the platform for negotiating the case down, sometimes to mischief or a trespass-type resolution that spares you the break and enter record entirely.

Bail for Break and Enter in Ontario: What Actually Happens

For most people, the bail hearing is the first and most frightening court appearance, and the one that shapes everything after it. Break and enter is not one of the rare offences that must go before a superior court judge for bail, so your hearing happens promptly in the Ontario Court of Justice. In Toronto, all adult bail hearings, including weekend and statutory-holiday courts, are centralized at the Toronto Regional Bail Centre at 2201 Finch Avenue West; in York Region, bail is heard at the Newmarket courthouse.

For an ordinary break and enter charge, the Crown bears the onus of showing why you should be detained or heavily restricted. A reverse onus, where you must justify your own release, applies only in specific, defined situations: if the offence was allegedly committed while you were already on release for another indictable charge; if the allegation is breaking and entering to steal a firearm under s.98; if the Crown alleges a criminal-organization offence; or if you are not ordinarily resident in Canada. Broad claims that break and enter charges always carry a reverse onus are simply wrong, and we push back hard when bail courts are invited to treat an ordinary charge as if they did.

What wins bail is preparation, not luck: a concrete release plan built before the hearing. That means identifying sureties who can supervise and pledge meaningfully, a residence away from the complainant or the alleged scene, conditions we propose rather than wait to receive, and, where the allegation involves an ex-partner's home or a former workplace, a plan that shows the court the conflict is being handled in the right forum. Conditions matter as much as release itself: geographic restrictions, curfews and no-contact terms can upend jobs, parenting time and housing, and badly drafted conditions set people up for breach charges that are often easier for the Crown to prove than the original allegation. Our Toronto bail lawyers page explains the process, sureties and variations in detail.

The Court Process Across Ontario: Elections and Preliminary Inquiries

Every break and enter charge starts in the Ontario Court of Justice, and the procedural road forks on the dwelling-house question. Dwelling-house break and enter is straight indictable, and because its maximum is life imprisonment, fourteen years or more, in the language of the Code, you keep the full menu of elections: trial in the OCJ, trial by a Superior Court judge alone, or judge and jury, and if you elect the Superior Court you may also request a preliminary inquiry to test the Crown's witnesses before trial. Non-dwelling break and enter carries a ten-year maximum, so no preliminary inquiry is available; the Crown elects first between summary and indictable procedure, and most of those cases are tried and resolved in the OCJ.

Between the first appearance and any trial sit the stages where most files are actually decided: disclosure review, Crown pre-trials, judicial pre-trials, and the quiet negotiations that happen around them. In Toronto, OCJ criminal matters proceed at 10 Armoury Street and Superior Court matters at 361 University Avenue; Markham and York Region cases are heard in Newmarket at 50 Eagle Street West, which houses both the OCJ criminal courts and the Superior Court; we also appear regularly in Brampton, Oshawa and courthouses across the province. You must attend every required court date, a missed appearance generates a warrant and a new charge that follows you into every later bail argument.

Resolutions, Records and Life After a Break and Enter Charge

Most break and enter charges in Ontario do not end in a trial. They end somewhere along a spectrum we work deliberately: outright withdrawal when disclosure reveals the case cannot be proven; a negotiated resolution to a lesser offence such as mischief or a trespass-type outcome when the entry is provable but the intent picture is weak; a guilty plea to a carefully framed set of facts when that is genuinely the best path; or a trial when the Crown will not see reason. Where the charge is resolved without a conviction, the file does not simply vanish, fingerprints, photographs and police records have their own afterlife, and we advise on destruction requests and, where a record does result, on the record-suspension options that may eventually apply.

For non-citizens, the stakes are different in kind, not just degree: a break and enter finding of guilt can trigger inadmissibility consequences that threaten permanent residence, work and study permits, and future citizenship applications. If you hold any status short of citizenship, your defence strategy and your immigration position have to be planned together from day one, not reconciled after a plea. Families feel these cases too, bail conditions that keep a parent out of the family home, employers who ask questions, professional licences that require reporting. We plan around all of it, and we are transparent about the practical side of hiring us: the first consultation is free, and fee structure is discussed openly at the outset so there are no surprises while the case is underway.

Why Kazandji Law for a Break and Enter Charge

Break and enter files reward lawyers who sweat the details, the dwelling-house definition, the timing of a fingerprint, the wording of the Crown election, the single line in an officer's notes that opens a Charter application. That is how we practise. Kazandji Law is a criminal defence firm built around preparation and early intervention: we get involved at the bail stage, we chase full disclosure instead of waiting for it, and we build the innocent explanation with evidence before anyone asks you to tell it.

We defend break and enter charges across Ontario from four offices: our Toronto headquarters at 180 John Street, Unit 320; our Thornhill office at 7191 Yonge Street, Suite 310, serving Markham and York Region; and offices in North York and Oakville. Wherever your courthouse is. Toronto, Newmarket, Brampton, Oshawa or beyond, you deal directly with counsel who knows the local Crown office and the local bench.

Frequently Asked Questions About Break and Enter Charges in Ontario

This page provides general legal information about break and enter charges in Ontario and is not legal advice. Every case depends on its own facts. Reading this page does not create a solicitor-client relationship with Kazandji Law. For advice about your specific situation, call 647-588-3234 for a free, confidential consultation.