Break and Enter Lawyers Toronto

Written by Daniel Brown

Etching of a panelled front door standing ajar with a splintered frame and a pry bar leaning beside it, on white paper

Breaking and entering means breaking into a place and entering it with intent to commit an indictable offence, committing one inside, or breaking out after doing so, under section 348 of the Criminal Code. A break and enter of a home is an indictable offence with a maximum of life imprisonment. For any other place, such as a store, garage, or office, it is a hybrid offence with a maximum of 10 years. Our lawyers defend break and enter, home invasion, and related charges in Toronto and across the GTA.

Defending break and enter charges in Ontario

Break and enter charges range from a shed or a construction site to a home invasion. The difference matters enormously: whether the place was a dwelling-house decides whether the maximum is 10 years or life, and whether the onus is reversed at bail.

Many of these cases turn on technical questions: whether there was a “break” in law, whether the place was a “place” at all, and what the accused intended at the moment of entry. The Criminal Code presumes the intent in some situations, but the accused only has to raise a reasonable doubt.

Daniel Brown Law defends break and enter charges across the Greater Toronto Area and Ontario, including Toronto, Newmarket, Oshawa, Brampton, and Milton. Daniel Brown Law is recognized among Canada’s top criminal defence firms — see our recognition below.

If you or someone you know has been charged with break and enter, contact our office immediately at (416) 297-7200.

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See the defences
The charge
Criminal Code s. 348Breaking and entering
Crown must prove
A break, an entry, and an offenceIntended, committed inside, or followed by breaking out
Maximum sentence
Life for a home10 years for any other place
Bail
Reverse onusFor a break and enter of a dwelling-house

What counts as breaking and entering?

The law of break and enter is more technical than the name suggests. A “break” can be as small as opening a closed door, and the Code treats some entries as a break and enter even when nothing was broken.

Sections 321, 348, 348.1, 349, and 350 of the Criminal Code. Theft without a break and enter is covered on our page on theft charges.

Key considerations

Opening a door is a “break”

To break means to break any part of a place, inside or outside, or to open anything used or intended to close or cover an opening, such as a closed door or window. Walking through a door that is already open wide enough to enter is not a break.

A finger counts as entering

A person enters as soon as any part of their body, or any part of a tool they are using, is inside the place.

Tricks and threats count

A person is deemed to have broken and entered if they got in by a threat, by a trick, or with the help of someone inside, or if they entered through any opening without lawful justification or excuse. Following a tenant’s car into an apartment building’s underground garage was entry by trick. So was getting into an apartment through a scheme to deceive the occupant.

Hiding in a store is not breaking

Walking in through a public entrance during business hours, intending to hide until closing and then steal, was not a break. A doorway with no door yet installed in a partly built house was an opening that counts.

Intent is presumed, but can be answered

If the Crown proves a break and enter, the Code presumes it was done to commit an indictable offence, unless there is evidence to the contrary. The burden of proof does not shift: the accused only needs evidence that raises a reasonable doubt. The intent is judged at the moment of entry.

Recently stolen goods

Unexplained possession of recently stolen property, on its own, allows a court to infer that the person in possession stole it. A believable explanation can answer that inference.

What counts as a “place” or a home?

A break and enter can only happen at a “place”: a dwelling-house; any other building or structure, or part of one; a railway vehicle, vessel, aircraft, or trailer; or a pen or enclosure where fur-bearing animals are kept for breeding or business. Whether the place was a dwelling-house decides the maximum sentence.

Etching of a two-storey house at night with one upstairs window lit, beside a bare tree, on white paper

A dwelling-house

Any building or structure, or part of one, kept or occupied as a permanent or temporary residence. It includes a building in the yard connected by a doorway or a covered, enclosed passageway, and a mobile unit being used as a residence. A tent used as a temporary residence to sleep in is a dwelling-house.

Not yet a home

A partly built house that has never been occupied as a residence is not a dwelling-house, although it can still be a place. That difference changes the maximum from life to 10 years.

Fenced yards and structures

An area enclosed by a permanent fence and a building is a place. A lot that can be entered simply by walking around a chain barrier is not a structure.

Things that are not places

An unoccupied, parked motorhome has been found not to be a place, and so has a parking meter. An ordinary car is not a place either: breaking into one is usually charged as theft, mischief, or possession of break-in instruments.

What other charges are related to break and enter?

Three related offences are often laid with, or instead of, a break and enter charge.

Being unlawfully in a dwelling-house (s. 349)

Entering or being in a home without lawful excuse, with intent to commit an indictable offence. No break is needed. Being in the home without lawful excuse is presumed to show the intent unless there is evidence to the contrary, but the burden does not shift. A sliding balcony door opened by the occupant has been treated as an opening for entry. Hybrid, up to 10 years.

Possession of break-in instruments (s. 351(1))

Possessing, without lawful excuse, a tool suitable for breaking into a place, motor vehicle, vault, or safe, knowing it has been or is meant to be used for that. The Crown must prove possession, that the tools were suitable, and that the accused knew what they were for. A link to a particular target is not always required. Any explanation the accused gave on arrest can be put before the court. Hybrid, up to 10 years.

Disguise with intent (s. 351(2))

Having your face masked, coloured, or otherwise disguised with intent to commit an indictable offence. If the Crown does not prove the underlying indictable offence, a conviction for disguise with intent cannot stand. Hybrid, up to 10 years.

Breaking in to steal a firearm (s. 98)

Breaking and entering a place, including a vehicle, to steal a firearm, or stealing one inside, is a separate offence with a maximum of life imprisonment — see gun and weapon possession charges.

How do you defend a break and enter charge?

Each defence answers a different part of the Crown’s case.

Etching of a ring of old house keys beside an open brass padlock, on white paper

There was no break or entry

Attacks: the break

Walking through an open door, or a public entrance during business hours, is not a break. Entry with permission, a key, or another lawful justification is not a break and enter.

There was evidence to the contrary on intent

Attacks: the intent

The presumed intent gives way to evidence that raises a reasonable doubt. Evidence of alcohol or drug use and irrational behaviour has been treated as evidence to the contrary. Where the charge is breaking and entering with intent, intoxication can be a defence.

It was not a home

Attacks: the place

Whether the place was a dwelling-house decides whether the maximum is life or 10 years, and whether the onus is reversed at bail. An unoccupied, partly built house is not a dwelling-house, and some things are not a place at all.

It was not you

Attacks: identity

Break and enter cases often rest on fingerprints, video, phone location, or recently stolen property. Each has limits, and an innocent explanation for having the property can answer the inference that the person stole it.

The wrong offence was charged

Attacks: the charge

The presumption of intent is not available where the charge names a particular indictable offence. Where the Crown cannot prove the offence it named, a lesser included offence, such as being unlawfully in a dwelling-house, may be the most that can be proven.

The evidence was obtained unlawfully

Attacks: the evidence itself

Charter rights breaches: excluding property, tools, or phone data found in an unlawful search, or a statement taken without access to a lawyer.

Do not give the police a statement before you get legal advice. You are not required to, and what you say can be used against you — including an explanation of why you were there or where property came from.

What is the sentence for break and enter in Canada?

A break and enter of a home carries a maximum of life imprisonment. For any other place, the maximum is 10 years. There is no mandatory minimum.

Charge Maximum Mandatory minimum
Break and enter of a dwelling-houses. 348(1)(d) — indictable only Life None
Break and enter of any other places. 348(1)(e) — hybrid 10 years None
Being unlawfully in a dwelling-houses. 349 — hybrid 10 years None
Possession of break-in instrumentss. 351(1) — hybrid 10 years None
Disguise with intents. 351(2) — hybrid 10 years None
Breaking and entering to steal a firearms. 98 — indictable only Life None

A break and enter of a dwelling-house can only be prosecuted by indictment, and because the maximum is life, a discharge is not available. A break and enter of any other place, and the related offences, are hybrid: the Crown can proceed by indictment, with the maximums above, or by summary conviction, with lower maximums.

Where a home was occupied, the accused knew or was reckless about that, and used violence or threats of violence to a person or property, the court must treat it as an aggravating factor. Home invasion cases call for a careful look at the particular facts, the nature and seriousness of what was done inside, and the individual offender. Protecting the public, general deterrence, and denunciation are given priority, although rehabilitation and the other sentencing factors must still be considered. A stiff penitentiary sentence is generally called for.

Consequences of a break and enter conviction

A break and enter conviction goes far beyond jail time. Collateral consequences can include:

  • Job loss and disqualification from certain professions
  • Immigration problems, including possible deportation for non-citizens
  • Denial of entry into the United States and other countries
  • A criminal record stored in the national CPIC database
  • Restitution orders to repay the cost of damage or stolen property

For more on collateral impacts, see our page on the immigration consequences of a criminal charge.

Why choose Daniel Brown Law for your break and enter case?

A break and enter of a home carries a maximum of life and a reverse onus at bail. The lawyer hired in the first 48 hours often shapes the entire case — the bail hearing, the identification evidence, and whether the place was a home at all.

A nationally recognized defence firm

Daniel Brown Law is consistently recognized as one of Canada’s leading criminal defence firms. Canadian Lawyer ranks it among Canada’s top criminal law boutiques, The Globe and Mail names it one of Canada’s Best Law Firms, Best Law Firms ranks it Tier 1 for criminal defence, and Toronto Star readers have repeatedly voted it Best Law Firm.

A boutique focused on criminal defence

Daniel Brown Law represents people charged with crimes — that is all the firm does. Our lawyers have defended break and enter cases at every level of court in Ontario, from first-appearance bail hearings to contested jury trials to appeals at the Court of Appeal for Ontario.

Identification evidence, tested properly

Fingerprints, video, phone records, and witness descriptions are often the whole case. We test how each was gathered and whether it really points to you.

Bail-stage urgency

A break and enter of a home reverses the onus at bail. We prepare bail materials with the same care most firms reserve for trial — identifying sureties, anticipating Crown concerns, and framing a release plan a justice will accept.

Trial and appellate capability under one roof

With a maximum of life for a home, an appeal is often part of the conversation from the start. Our lawyers handle both stages, so the trial record is built with appellate review in mind. Read more about our criminal appeals practice.

Across the GTA and Ontario

We appear regularly in Toronto, Newmarket, Oshawa, Brampton, Milton, Hamilton, and Barrie courthouses, and travel to other Ontario courts as a case requires.

Recognized by the profession and the public

Daniel Brown Law is named one of Canada’s Best Law Firms by The Globe and Mail, ranked among Canada’s top criminal law boutiques by Canadian Lawyer, ranked Tier 1 for criminal defence by Best Law Firms, and voted Best Law Firm by Toronto Star readers. Five of its lawyers are recognized by Best Lawyers in Canada for criminal defence.

The Globe and Mail Best Law Firms 2026, Criminal Law

Best Law Firms: Criminal Law

The Globe and Mail, 2026

Canadian Lawyer Top Criminal Law Boutique 2026-27

Top Criminal Law Boutique

Canadian Lawyer, 2026–27

Best Law Firms Canada, Criminal Defence Tier 1, 2026

Criminal Defence, Tier 1

Best Law Firms Canada, 2026

Best Lawyers in Canada 2027, Daniel Brown Law

Best Lawyers in Canada

Criminal Defence, 2027

Chambers Canada 2027, Ranked in Canada, Daniel Brown Law

Crime, Nationwide

Chambers Canada, 2027

Toronto Star Readers' Choice winner seal

Toronto Star Readers’ Choice

Best Law Firm and Best Legal Services, repeat winner

Daniel Brown Law is consistently recognized as one of Canada's leading criminal defence firms.

What happens after a break and enter charge?

The first weeks after a break and enter charge, and above all the bail hearing, often shape the whole case.

  1. Arrest and the bail hearing

    A break and enter of a dwelling-house reverses the onus at bail: you must show why you should be released. We prepare the release plan and sureties before the hearing.

  2. Disclosure

    The Crown must disclose its case: video, forensic reports, phone records, witness statements, and any statement you made. We test all of it.

  3. Election and preliminary inquiry

    Because a break and enter of a home carries life, you choose how to be tried — by a provincial court judge, a superior court judge alone, or a judge and jury. If you choose the Superior Court, you can ask for a preliminary inquiry, which is held in the Ontario Court of Justice before the case goes to the Superior Court, to test the evidence before trial.

  4. Resolution

    Many break and enter cases resolve without a trial: charges withdrawn, reduced to a lesser charge such as mischief or being unlawfully in a dwelling-house, or a negotiated sentence.

  5. Trial, and appeal if needed

    At trial the Crown must prove every element beyond a reasonable doubt. A conviction or sentence can be appealed.

Frequently asked questions about break and enter charges

Plain answers to the questions people ask most after a break and enter charge.

The charge

What is breaking and entering?

Under section 348 of the Criminal Code, it is an offence to break and enter a place with intent to commit an indictable offence in it; to break and enter a place and commit an indictable offence in it; or to break out of a place after committing an indictable offence in it, or after entering it with intent to commit one.

What does “break” mean?

To break any part of a place, inside or outside, or to open anything used or intended to be used to close or cover an opening. Entering through an open door wide enough to walk through, without opening anything further, is not a break.

Can I be charged if nothing was broken?

Yes. A person is deemed to have broken and entered if they got in by a threat, a trick, or collusion with someone inside, or entered without lawful justification or excuse through a permanent or temporary opening. Following a tenant’s car into an apartment building’s underground garage, for example, was entry by trick.

When does a person “enter”?

As soon as any part of their body, or any part of an instrument they are using, is inside the place being entered.

What is the difference between break and enter and being unlawfully in a dwelling-house?

Being unlawfully in a dwelling-house under section 349 does not require a break. It is entering or being in a home without lawful excuse, with intent to commit an indictable offence there. It is a hybrid offence with a maximum of 10 years, and it is included in a charge of breaking and entering with intent.

Is a landlord who enters without permission guilty of break and enter?

It can be. A landlord who had not obtained an order of possession, removed the tenants’ belongings, and scattered them on the lawn was convicted of break and enter, with the court applying the presumption of intent.

Intent and defences

Does the Crown have to prove what I intended?

Not always directly. Evidence that the accused broke and entered, or tried to, is proof of intent to commit an indictable offence unless there is evidence to the contrary. The same applies to breaking out. These presumptions only create a prima facie case: the burden of proof does not shift, and the accused only needs to raise a reasonable doubt with evidence that is not rejected or disbelieved.

What counts as “evidence to the contrary”?

Evidence that raises a reasonable doubt about the intent at the moment of entry. Evidence of alcohol and drug consumption and irrational behaviour has been treated as evidence to the contrary. The fact that the accused did not commit an offence once inside is not, on its own, evidence to the contrary. The presumption is also not available where the charge names a particular indictable offence.

Is intoxication a defence to break and enter?

It depends on the charge. Intoxication can be a defence to breaking and entering with intent to commit an indictable offence. It is not a defence to breaking and entering and committing an offence, which is a general intent offence, unless the offence committed inside requires a specific intent.

Can I be convicted because I had stolen property?

Unexplained possession of recently stolen goods, on its own, allows a court to infer that the person who had them stole them. An explanation that might reasonably be true can answer that inference.

What lesser offences are included in a break and enter charge?

Breaking and entering with intent includes being unlawfully in a dwelling-house. Breaking and entering with intent has also been found to be included in charges of break and enter with aggravated assault, and break and enter with assault causing bodily harm. A charge of break and enter and theft does not include possession of property obtained by crime, and mischief is not included in unlawfully entering a home.

Sentencing and bail

What is the sentence for break and enter?

A break and enter of a dwelling-house is indictable only, with a maximum of life imprisonment. For any other place, it is a hybrid offence with a maximum of 10 years by indictment. There is no mandatory minimum.

What is a home invasion?

A break and enter of a home that was occupied, where the accused knew or was reckless about that, and used violence or threats of violence to a person or property. The court must treat those facts as aggravating. Protection of the public, deterrence, and denunciation take priority, and a stiff penitentiary sentence is generally called for, although each case still depends on its particular facts and offender.

Can I get a discharge for break and enter?

Not for a break and enter of a dwelling-house, because the maximum is life. For a break and enter of another place, a discharge can be available where it is in your interest and not contrary to the public interest.

What happens at bail on a break and enter charge?

For a break and enter of a dwelling-house, the onus is reversed: the accused must show why their detention is not justified, with a release plan that clearly addresses the risks. Learn more on our page about Toronto bail hearings.

What charges are laid alongside break and enter?

Break and enter charges often arrive alongside theft, mischief, robbery, assault, or failing to comply with bail conditions.

Charges we defend

Learn more about some of the charges we defend. We also defend charges not listed here.

Charged with break and enter? Speak with Daniel Brown Law

Call Daniel Brown Law at (416) 297-7200 for a confidential consultation. We appear in courts across the GTA and Ontario.

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