Table of Contents
Breaking and entering in Canada is a serious property crime that covers far more than stereotypical “burglary.” Under Section 348 of the Criminal Code, a person can be convicted where they unlawfully enter a place with the intent to commit an indictable offence, actually commit one inside, or break out after committing such an offence. In police reporting, this offence is recorded under UCR Code 2120. It is classified as a hybrid offence, meaning the Crown can choose to proceed either summarily or by indictment depending on the circumstances. In everyday terms, breaking and entering Canada cases often involve homes, businesses, garages, and other structures, and the law treats entries into dwelling-houses (places where people live) with the greatest severity, up to life imprisonment.
The Legal Definition
According to section 348(1) of the Criminal Code, a person is guilty of breaking and entering if they:
(a) break and enter a place with intent to commit an indictable offence therein;
(b) break and enter a place and commit an indictable offence therein; or
(c) break out of a place after committing an indictable offence therein, or entering the place with intent to commit an indictable offence therein.
In plain English, this means that a person doesn’t need to successfully steal anything to be guilty of breaking and entering. It is enough that they enter a place (such as a house, store, garage, warehouse, shed, or other structure) after “breaking” in and that, at the time, they either intend to commit an indictable offence inside (like theft, assault, mischief, or another serious crime), or they actually do commit such an offence. The law also covers situations where someone breaks out of a place after committing an indictable offence or after entering with that intent.
“Breaking” is interpreted broadly in Section 348 and the related case law. It is not limited to smashing a window or kicking down a door. Opening a locked door, lifting a latch, prying a window, or even entering through an unlocked door or window can amount to “breaking” when done without permission and for a criminal purpose. A person can be deemed to have broken and entered if they gain entry by threats, trickery, collusion, or by using an existing opening without lawful justification. The official wording and additional context can be reviewed directly in the Criminal Code at the Government of Canada’s Justice Laws Website: Section 348 of the Criminal Code.
Penalties & Sentencing Framework
- Mandatory minimum penalty: None (no mandatory minimum sentence applies to Section 348).
- Maximum penalty – Indictable (Dwelling-House): Life imprisonment.
- Maximum penalty – Indictable (Non-Dwelling): 10 years imprisonment.
- Maximum penalty – Summary conviction: Up to 2 years less a day in provincial jail, or a fine up to $5,000, or both.
Because breaking and entering is a hybrid offence, the Crown has discretion to proceed by indictment (for more serious cases) or by summary conviction (for less serious ones). Several factors influence this choice: whether the place was a dwelling-house or a non-residential property; the presence of occupants at the time; any threats, violence, or weapons; the value of property targeted or stolen; and the accused’s criminal record. Break-ins into occupied homes are treated as especially grave because they violate the safety and privacy of people in their most intimate space.
The Criminal Code distinguishes sharply between dwelling-houses and other places. If the breaking and entering involves a dwelling-house and the Crown proceeds by indictment, the court can impose a sentence up to life imprisonment. By contrast, for non-dwelling places (such as businesses, detached garages used mainly for storage, or commercial warehouses), the maximum indictable sentence is 10 years. Where the Crown chooses to proceed summarily—generally for less serious circumstances—sentences are capped at 2 years less a day in a provincial institution and/or a fine of up to $5,000.
Although there is no mandatory minimum sentence, sentencing judges must consider a wide range of factors: the nature of the target (home vs. business), whether people were present or traumatized, whether the incident was planned or opportunistic, whether the accused was under the influence, the extent of property damage, and any prior record for similar offences. Courts often emphasize denunciation and deterrence, especially in residential break and enters, to protect the public and discourage similar conduct. At the same time, mitigating factors—such as youthfulness, addiction issues being addressed, genuine remorse, restitution for damage, and early guilty pleas—can reduce the length or type of sentence (for example, probation, conditional sentences where available, or shorter custodial terms).
Common Defenses
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Lawful excuse or justification
A key element of breaking and entering is that the entry must be without lawful justification or permission. If the accused can demonstrate that they had a legitimate right or authority to be on the premises, this undermines the Crown’s case. Lawful excuse could include explicit permission from the owner or occupier, implied permission (for example, a tenant with keys entering a common area or storage space within the scope of their lease), or a legal duty that required entry (such as certain emergency responders or persons executing a valid warrant). In disputes between family members, roommates, or former partners, the lawfulness of entry can become complex: a person who reasonably believed they were still entitled to enter may have a viable defence if that belief was honest and reasonably grounded. The Crown must prove lack of lawful authority beyond a reasonable doubt, so credible evidence of permission or justification can lead to an acquittal. -
Lack of intent to commit an indictable offence
Section 348 specifically requires the intent to commit an indictable offence in the place, or proof that such an offence was committed. The Crown must establish this mental element (mens rea), not just the physical entry (actus reus). If a person enters without criminal intent—say, to take shelter from the cold, to play a prank without damaging or stealing property, or due to confusion or intoxication that prevents the formation of the necessary intent—this may negate the offence. For example, entering a building mistakenly thinking it was open to the public, or entering a friend’s house believing you were invited or had standing permission, can raise a doubt about criminal intent. The defence does not need to prove innocence; it only needs to raise a reasonable doubt about whether the accused intended to commit an indictable offence at the time of entry or break-out. Evidence such as lack of tools, absence of property disturbance, or credible explanations for being on the premises can be important. -
Charter rights violation
Even where the physical elements and intent for breaking and entering appear to be present, the defence can challenge how the police obtained the evidence. Under the Canadian Charter of Rights and Freedoms, individuals are protected against unreasonable search and seizure, arbitrary detention, and being forced to incriminate themselves. If police, for example, enter a suspect’s home without a warrant or lawful authority, conduct an unlawful search of personal items, or obtain statements without properly informing the accused of their right to counsel, the defence can argue that the evidence should be excluded. Where crucial evidence—such as stolen property found in a home, incriminating tools, or a confession—is ruled inadmissible due to Charter breaches, the Crown may be left without enough proof to secure a conviction. Courts balance the seriousness of the Charter violation against society’s interest in adjudicating the case, but significant or deliberate rights violations can result in dismissal of key evidence in breaking and entering prosecutions.
Real-World Example
Imagine someone forcing open a window to enter a house, intending to steal valuable items. They wait until the occupants are away, pry open a basement window with a screwdriver, climb inside, and start searching for cash and electronics. This scenario fits the definition of breaking and entering. The person has “broken” by forcing the window and “entered” a dwelling-house with the clear intent to commit the indictable offence of theft. Even if the homeowner unexpectedly returns and the intruder flees empty-handed, the offence is complete because the intent to commit an indictable offence existed at the time of entry. Police, upon investigation, would likely treat this as a serious residential break and enter. If arrested and charged under Section 348, the Crown would probably proceed by indictment due to the involvement of a dwelling-house. The court would consider the violation of the homeowners’ sense of security, the planning involved (tools, timing when the house was empty), and any prior record of similar offences when determining sentence. A conviction could result in a substantial period of imprisonment, especially if the accused has a history of property crime.
Record Suspensions (Pardons)
A conviction for breaking and entering creates a criminal record that can significantly affect employment, travel, housing, and immigration status. Under current federal rules for record suspensions (commonly known as pardons), eligibility depends on whether the conviction was for a summary or an indictable offence. For breaking and entering prosecuted summarily, an individual generally becomes eligible to apply for a record suspension 5 years after completing their entire sentence (including any jail term, probation, and payment of fines or restitution). For indictable convictions, including serious residential break and enters, the standard waiting period is 10 years after sentence completion. There is no automatic pardon; an application must be made to the Parole Board of Canada, which examines factors such as the person’s conduct since conviction and the absence of new offences. Because breaking and entering is viewed as a serious property and, in the case of homes, personal security offence, strong evidence of rehabilitation, stable lifestyle, and good character is especially important in a successful record suspension application.
Related Violations
- Burglary
- Trespassing at Night
- Possession of Break-In Instruments
