Break and enter is one of the most serious property offences in the Criminal Code, particularly where a home is involved. The maximum penalty depends heavily on whether the place broken into was a dwelling-house, meaning somewhere people live, or another type of building. This guide explains how break and enter is defined under section 348 of the Criminal Code, the distinction between dwelling-houses and other places, potential penalties, and what generally happens after this kind of charge in Ontario. It is general legal information, not legal advice about a specific case.
What Is Break and Enter?
Section 348 of the Criminal Code makes it an offence to break and enter a place with intent to commit an indictable offence inside, to break and enter a place and actually commit an indictable offence inside, or to break out of a place after committing or attempting to commit an indictable offence inside. "Breaking" is interpreted broadly and does not require force in the everyday sense; it can include opening a closed but unlocked door or window, or gaining entry through a method other than the ordinary, intended means of entry. The indictable offence intended or committed inside is often theft, but it can be a range of other offences as well.
Dwelling-Houses vs. Other Places
The Criminal Code draws a sharp distinction based on the type of place involved. A dwelling-house is broadly defined to include a building or part of a building kept for residential use, even if no one is present at the time. Breaking into a home is treated far more seriously than breaking into a business, warehouse, or other non-residential building, reflecting the heightened sense of security and privacy the law attaches to a person's home.
Classification and Penalties
Break and enter of a dwelling-house is a straight indictable offence with no summary conviction option, while break and enter of a place other than a dwelling-house is a hybrid offence.
Break and Enter (Section 348) at a Glance
- Classification – dwelling-house
- Indictable offence only
- Maximum penalty – dwelling-house
- Life imprisonment
- Classification – other places (business, warehouse, etc.)
- Hybrid offence (Crown elects summary conviction or indictment)
- Maximum penalty – other places
- Up to 10 years on indictment; up to 2 years less a day on summary conviction
- Mandatory minimum sentence
- None for a standard section 348 charge
These figures reflect the Criminal Code as of this page's last update. Actual sentences depend heavily on the type of place, whether it was occupied, whether violence was used, and the person's record. A criminal lawyer can confirm the current state of the law for a specific case.
Occupied Homes: The "Home Invasion" Factor
"Home invasion" is not a separate offence in the Criminal Code, but section 348.1 requires courts to treat it as a statutory aggravating factor where a break and enter of a dwelling-house occurred while the home was occupied, the person knew or was reckless as to whether it was occupied, and violence or threats of violence were used against a person or property. This combination of factors, sometimes described informally as a home invasion, generally results in a significantly more serious sentence than a break and enter of an unoccupied home.
How This Relates to Other Charges
Break and enter is frequently charged alongside other offences depending on what happened inside the premises. Where property is taken, a theft charge often accompanies the break and enter charge. Where an occupant is confronted and force or threats are used, charges such as assault or robbery may also apply. Where the person is later found with property taken during a break-in they did not personally commit, a possession of stolen property charge may apply instead.
Because a home occupied at the time of a break-in triggers a significant statutory aggravating factor, whether the Crown can prove the person knew, or was reckless as to whether, the home was occupied is often a central and heavily contested issue in these cases.
Section 348 also includes a specific evidentiary rule: where the Crown proves that a person broke and entered a place, the court may, in the absence of evidence to the contrary, infer that the person did so with the intent to commit an indictable offence inside. This shifts a practical burden onto the defence to raise a doubt about intent, even though the Crown still bears the overall burden of proving the offence beyond a reasonable doubt.
Possible Defences
Break and enter cases often turn on whether the Crown can prove the person actually entered the place without authorization and with the necessary intent, as opposed to having a lawful reason to be there or a genuine, honest belief they were entitled to enter. Identification evidence, including forensic evidence such as fingerprints or DNA, is frequently central to these cases, particularly where the person was not caught at the scene. Whether the Crown can prove the person knew or was reckless as to whether a home was occupied, relevant to the aggravating factor discussed above, can also be a significant issue. A criminal lawyer should review the full disclosure before advising on possible defences.
What Happens After This Charge
Given the seriousness of break and enter, particularly involving a dwelling-house, a person charged with this offence is likely to face a contested bail hearing, and release conditions frequently include restrictions on the person's location, such as staying away from the specific neighbourhood or address involved. From there, the case proceeds through the standard court process, including disclosure of the Crown's evidence, which in these cases often includes forensic evidence and, where available, surveillance or alarm system records. A conviction results in a criminal record; see our criminal records overview and our sentencing overview for more.
Sentencing for break and enter offences spans an unusually wide range, reflecting the wide range of conduct the offence covers. A first-time offender who broke into an unoccupied garage or shed may face a very different outcome than someone convicted of repeatedly targeting occupied homes, or someone involved in a break-in where an occupant was confronted and threatened. Courts also consider the impact on victims, who often describe a lasting sense of violation after their home is broken into, even where nothing of significant value was taken. See our victims and witnesses page for more on support available to people affected by property crime.
Frequently Asked Questions
Is breaking into an empty house treated less seriously than one that's occupied?
Generally, yes. While both are prosecuted under the same section, an occupied dwelling-house where the person knew or was reckless as to occupancy and used or threatened violence triggers a statutory aggravating factor that generally leads to a more serious sentence.
Does breaking in require force, like breaking a window?
No. "Breaking" is interpreted broadly under the Criminal Code and can include entering through an unlocked door or window, or by any method other than the ordinary intended means of entry, even without any physical force being used.
What counts as a dwelling-house?
A dwelling-house is broadly defined to include a building or part of a building kept for residential use, whether or not anyone is present at the time of the offence.
Can I be charged with break and enter even if nothing was taken?
Yes. The offence can be made out simply by breaking and entering with the intent to commit an indictable offence inside, even if that offence, such as theft, was never actually completed.
Will I definitely go to prison for a break and enter conviction?
Not necessarily in every case, particularly for a break-in of a non-residential place with no aggravating factors, but custodial sentences are common, especially for break and enter of an occupied dwelling-house. A criminal lawyer can give a realistic assessment based on the specific facts.