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CRIMINAL DEFENCE GUIDE
Break and Enter Charges in Ontario
A practical guide to dwelling-house and commercial break and enter charges, intent, identification, surveillance, possession evidence and what happens after a charge.
A break and enter case is not only about whether someone was found inside a place. The prosecution may need to prove entry, identity and criminal intent, while the defence may need to examine surveillance, fingerprints, DNA, digital records, possession of property and the full context of how the person came to be there.
Prepared by Tatyana Trusz, Trusz Law • Updated July 2026 • 14 min read
QUICK ANSWER
What must the Crown prove for break and enter?
Section 348 of the Criminal Code covers breaking and entering a place with intent to commit an indictable offence, breaking and entering and then committing one, or breaking out after committing or intending to commit an indictable offence.
The Crown may also rely on statutory presumptions about intent. The defence therefore often focuses on whether the accused was the person who entered, whether there was a legally recognized break or entry, what the accused intended at the time and whether the surrounding evidence supports another explanation.
IN THIS GUIDE
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CHARGED WITH BREAK AND ENTER?
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Surveillance, phone data, receipts, messages and the exact location can all matter early.
THE SHORT ANSWER
Break and enter is about entry, identity and criminal intent
Section 348 addresses three routes to the offence:
- breaking and entering a place with intent to commit an indictable offence there;
- breaking and entering and then committing an indictable offence; or
- breaking out after committing, or entering with intent to commit, an indictable offence.
That means the Crown may need to prove more than unlawful presence. The defence may examine:
- whether the accused was correctly identified;
- whether the accused entered the place at all;
- whether the entry was authorized or otherwise lawful;
- what the accused intended at the time of entry;
- whether any property or other alleged offence can be connected to the accused; and
- whether the prosecution evidence is complete and reliable.
Because section 348 contains statutory presumptions about intent, the exact factual route alleged by the Crown should be identified early.
KEY TAKEAWAYS
At a glance
- Break and enter into a dwelling-house is treated more seriously than break and enter into another kind of place.
- For a dwelling-house offence under section 348, the maximum penalty is life imprisonment.
- For a place other than a dwelling-house, the offence is hybrid and carries a maximum of 10 years if prosecuted by indictment.
- “Breaking” can include opening something used to close an opening; physical destruction is not always required.
- Identification, intent, authorization and possession evidence are common defence issues.
- Surveillance and digital evidence should be preserved quickly because third-party records may disappear.
OFFENCE LEVEL
Dwelling-house vs. commercial or other break and enter
| Type of place | Current Criminal Code treatment |
|---|---|
| Dwelling-house | Indictable offence under section 348, punishable by imprisonment for life. |
| Place other than a dwelling-house | Hybrid offence. If prosecuted by indictment, the maximum is 10 years; the Crown may also proceed summarily. |
The distinction matters because a dwelling is connected to personal security and privacy in a way that commercial premises are not. But the legal classification of the place is only one part of the case. The Crown must still prove the accused’s identity and the elements of the specific route alleged under section 348.
WHAT “BREAK” AND “ENTER” MEAN
A broken window is not required
The Criminal Code uses specific definitions.
“Break” includes physically breaking part of a place, but it also includes opening something used or intended to close or cover an opening. A door, window or other closure can therefore matter even if there is no dramatic property damage.
Section 350 also provides that a person enters as soon as any part of their body—or an instrument being used—is within the thing being entered.
A person can also be deemed to have broken and entered where entrance is obtained by:
- a threat;
- an artifice or trick;
- collusion with someone inside; or
- entry without lawful justification or excuse through a permanent or temporary opening.
The defence should therefore avoid assuming the case depends only on visible damage to a door or window. The alleged method of entry needs to be identified precisely.
THE EVIDENCE
What evidence matters in a break and enter case?
1. Surveillance and doorbell footage
Video can be powerful, but quality, angle, timing and completeness matter. A person’s clothing, gait or vehicle may be more visible than their face.
2. Fingerprints, DNA and forensic evidence
Forensic evidence can connect a person to a place or object, but context matters. The defence may ask when and how the trace could have been deposited.
3. Phone, location and digital records
Cell-site, app, map, messaging and device data may be used to place a person near a location—or to challenge the prosecution timeline. Accuracy and interpretation need careful review.
4. Possession of allegedly stolen property
Possession can become a major part of the prosecution theory, but the Crown still needs to connect the property and the accused to the alleged offence. Ownership, access and explanation all matter.
5. Vehicle evidence
Licence-plate records, vehicle descriptions, GPS, toll data, dashcam footage and searches of a vehicle can all become important depending on the case.
6. Witness identification
Opportunity to observe, lighting, distance, stress, prior familiarity and the identification procedure may affect reliability.
7. Receipts, messages and an alternative timeline
Travel records, purchases, work records, messages and witnesses may help reconstruct where the accused was and what they were doing.
“A property offence case can look simple when reduced to one image or one recovered item. The defence has to rebuild the sequence that connects—or fails to connect—the accused to the place and the alleged intent.”
— Trusz Law
DEFENCE ISSUES
What issues can matter to the defence?
Identity.
Can the Crown prove that the accused was the person who entered or broke out of the place?
Intent.
What indictable offence does the Crown say the accused intended to commit, and what evidence proves that intent?
Lawful access or authority.
Did the accused have permission, a key, a prior right of access or another lawful explanation?
Possession and control.
If property or tools were found in a shared home or vehicle, can the Crown prove knowledge and control?
Alternative explanation for forensic evidence.
A fingerprint or DNA result may prove contact with an object without necessarily proving the time or purpose of that contact.
Unreliable identification.
Poor-quality video or brief eyewitness observation can create mistaken identification risks.
Search and seizure issues.
Search warrants, vehicle searches, phone searches and detention may require Charter review.
Incomplete timeline.
The prosecution theory may omit records that explain travel, access or possession.
RELATED CHARGES
What other offences can be charged with break and enter?
Depending on the allegations, related charges can include:
- Being unlawfully in a dwelling-house — s. 349: entering or being in a dwelling-house without lawful excuse with intent to commit an indictable offence there;
- Possession of break-in instruments — s. 351: possessing a suitable instrument without lawful excuse while knowing it has been used or is intended to be used for breaking in;
- Possession of property obtained by crime;
- Theft;
- Mischief;
- Disguise with intent;
- Obstruction or flight-related charges; or
- Weapons offences where alleged facts support them.
Section 349 is distinct from section 348. The current provision makes unlawfully entering or being in a dwelling-house with intent to commit an indictable offence a hybrid offence carrying a maximum of 10 years if prosecuted by indictment.
AFTER THE CHARGE
What happens after someone is charged with break and enter?
01 Release or bail
The accused may be released with conditions or held for a bail hearing. Conditions can address locations, named people, weapons, tools, vehicles or other case-specific risks.
02 First court appearance
The case enters the Ontario criminal-court process. The accused must follow all attendance requirements and release conditions.
03 Disclosure
The defence receives the prosecution evidence, which may include surveillance, witness statements, forensic reports, search records and photographs.
04 Evidence preservation and investigation
Third-party video, access records, digital data and witnesses should be identified early.
05 Legal and factual analysis
Counsel assesses identity, entry, intent, possession, forensic evidence and any Charter issues.
06 Resolution discussions or trial preparation
Depending on the evidence, the case may be resolved or proceed to motions and trial.
POSSIBLE CASE OUTCOMES
How can a break and enter charge end?
Depending on the evidence, criminal history, type of place and prosecution position, a case may end through:
- withdrawal of the charge;
- a non-trial resolution where legally and practically available;
- a guilty plea to the original or a different offence;
- an acquittal after trial; or
- a conviction and sentencing.
Sentencing can be affected by the type of premises, whether anyone was present, planning, property loss or damage, related offences, prior record and other circumstances.
A conviction can also affect employment, immigration, travel, housing and professional opportunities depending on the person’s circumstances.
COMMON MISTAKES
Problems that can make a break and enter case harder
Deleting location history, messages or photos.
Records that seem unimportant may support an alternative timeline.
Contacting witnesses about what they should say.
This can create serious new issues. Use counsel or an appropriate investigator.
Returning to a prohibited place.
Release conditions remain binding until lawfully changed.
Assuming poor-quality video cannot identify anyone.
The prosecution may combine footage with clothing, vehicles, phones and possession evidence.
Giving an explanation before reviewing the disclosure.
A statement based on memory can later conflict with records the accused had not seen.
Ignoring shared access to a vehicle or residence.
Where property or tools are found in a shared space, access and control may become important.
Waiting to request private surveillance.
Many systems overwrite footage automatically.
Assuming “no damage” means “no break and enter.”
The statutory definitions do not require a smashed door or window.
HOW TRUSZ LAW CAN HELP
Test the chain that is supposed to connect the accused to the place, the entry and the intent.
Trusz Law helps people charged with break and enter understand the allegation, release conditions, disclosure and criminal-court process in Ontario.
Depending on the case, that may include reviewing surveillance and forensic evidence, preserving digital records, challenging identification, examining possession and access, assessing search and seizure issues, negotiating with the Crown and preparing for trial.
The goal is to move beyond the charge label and examine every link the prosecution relies on: who entered, how the entry occurred, what the person intended and whether the evidence proves the case beyond a reasonable doubt.
FREQUENTLY ASKED QUESTIONS
Break and enter questions people often ask
What is break and enter under the Criminal Code?
Section 348 covers breaking and entering a place with intent to commit an indictable offence, breaking and entering and committing one, or breaking out after committing or intending to commit an indictable offence.
Do you have to physically break a door or window to be charged?
No. The Criminal Code definition of “break” includes opening something used or intended to close or cover an opening. Section 350 also recognizes other forms of deemed breaking and entering.
What is the maximum penalty for break and enter into a house?
Break and enter in relation to a dwelling-house is an indictable offence punishable by imprisonment for life. That is the statutory maximum, not the automatic sentence in every case.
What is the penalty for break and enter into a business?
For a place other than a dwelling-house, section 348 is hybrid. If the Crown proceeds by indictment, the maximum is 10 years; the Crown may also proceed summarily.
Can you be charged if nothing was stolen?
Yes. Section 348 includes breaking and entering with intent to commit an indictable offence, even if the alleged intended offence is not completed.
Can an unlocked door still lead to a break and enter charge?
Potentially. The Criminal Code definitions do not require visible damage, and opening something used to close an opening can meet the definition of “break.” The full facts and any lawful justification matter.
What evidence is commonly used in break and enter cases?
Common evidence includes surveillance, witness identification, fingerprints, DNA, phone and location data, possession of property, vehicle records and search results.
Can possession of stolen property prove break and enter?
Possession may be important evidence, but the Crown still has to prove the elements of the charged offence. The timing, nature of possession, explanation, identity and other evidence all matter.
What is being unlawfully in a dwelling-house?
Section 349 applies where a person, without lawful excuse, enters or is in a dwelling-house with intent to commit an indictable offence there. It is distinct from section 348 and currently carries a maximum of 10 years if prosecuted by indictment.
What is possession of break-in instruments?
Section 351 applies where a person, without lawful excuse, possesses an instrument suitable for breaking into a place, motor vehicle, vault or safe while knowing it has been used or is intended to be used for that purpose.
Can break and enter charges be dropped?
Charges can be withdrawn or resolved in appropriate cases, but the outcome depends on the evidence, legal issues, public-interest considerations and the prosecutor’s position. There is no automatic withdrawal process.
When should I speak with a criminal defence lawyer about a break and enter charge?
As early as possible. Surveillance and third-party data can disappear, release conditions may restrict where the accused can go, and forensic or possession evidence may require prompt investigation.
OFFICIAL RESOURCES
Further reading
ABOUT THIS RESOURCE
Prepared by Tatyana Trusz, Trusz Law. This resource is for general information only and is not legal advice. Break and enter cases depend on the specific charge, type of place, evidence, alleged intent, release conditions and current law. Last reviewed July 2026.
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