Break and Enter
Break and Enter crimes are one of Canada's most commonly committed property offences. It is also one of the serious crimes in the Criminal Code.
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Plain-Language Summary
Break and Enter with Intent: Breaking into a home or business to steal property is one of the most commonly committed property offences in the country. It is also one of the serious crimes in the Criminal CodeA federal act codifying most criminal offences in Canada. It doesn't matter if you walked through an unlocked door or that did not actually take anything, the offenceA criminal activity of break and enter with intent as outlined in s.348 (1) of the Code is an indictable offence. If you are caught breaking into a property such as a business, you could face up to 10 years in custody. If you enter a home without reason with intent to commit an indictable offence, the consequences are much worse and you could be imprisoned for life.
Break and Enter
Break and enter is defined as entering a residence, business or other property without permission to commit a crime. A forced entry is not required. Even if you enter the building through an open window or an unlocked door, if you did not have permission to be there you could face charges even if no theft, injury to occupants or property damage occurs.
Research shows residential break-ins occur every 90 seconds in Canada, and the majority happen during daylight hours. It is a common crime that has been increasing in frequency over the years, especially during the pandemic.
According to the Criminal Code you can be found guilty of the offence of breaking and entering with intent if you:
- break and enter a place with intent to commit an indictable offenceA more serious type of Canadian criminal offence.;
- break and enter a place and commit an indictable offence; or
- break out of a place after committing an indictable offence;
The property can be a dwelling-house; a building or structure or any part thereof; a railway vehicle, a vessel, an aircraft or a trailer; or a pen or an enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.
Although there is no specific charge of home invasion in the Code, the court treats those who enter a home and cause bodily harm to the occupants harshly. Even if the residents are unharmed, breaking into a home while there is someone there is seen as an aggravating factor upon sentencing.
How the Charge May Proceed
How a break-and-enter charge proceeds depends on where it happened and which section the Crown relies on.
- Break and enter of a dwelling-house (s. 348): this is treated as an indictable offence, and the maximum is imprisonment for life.
- Break and enter of a place other than a dwelling-house (s. 348): the Crown can proceed by indictment, with a maximum of 10 years, or by summary convictionLess-serious criminal offences.
- Being unlawfully in a dwelling-house (s. 349): the Crown can proceed by indictment, with a maximum of 10 years, or by summary conviction.
What the Crown Must Prove
To get a conviction, the Crown must prove every part of the offence beyond a reasonable doubt.
Break and enter (s. 348) — main offence
Identity
The Crown must prove the accused is the person who committed the offence.
A break and enter, or a breaking out
That the accused broke and entered a place, or broke out of it. Under the Criminal Code, 'breaking' includes opening any door or window — even if it is unlocked — as well as breaking through a wall or other part of a structure.
The place
That the location is a "place" as the Criminal Code defines it: a dwelling-house; a building or structure (or part of one); a railway vehicle, vessel, aircraft or trailer; or a pen or enclosure for fur-bearing animals kept for breeding or commercial purposes.
Intent to commit an indictable offence, or committing one inside
That the accused intended to commit an indictable offence inside, or actually committed one after entering.
Whether it was a dwelling-house
Whether the place was a dwelling-house, because that affects how serious the penalty can be.
Evidence of breaking and entering (s. 348(2))
Under s. 348(2), evidence of breaking and entering can be treated as evidence of intent to commit an indictable offence, unless there is evidence to the contrary.
Being unlawfully in a dwelling-house (s. 349) — related offence
Identity
The Crown must prove the accused is the person involved.
Entering or being in a dwelling-house
That the accused entered or was inside a dwelling-house.
Without lawful excuse
That the accused was there without a lawful excuse. Section 349 uses these exact words, so whether there was a lawful reason to be there can be in issue.
Intent to commit an indictable offence inside
That the accused intended to commit an indictable offence inside the dwelling-house.
Evidence of being there without lawful excuse (s. 349(2))
Under s. 349(2), evidence that the person was in the dwelling-house without lawful excuse can be treated as evidence of intent to commit an indictable offence, unless there is evidence to the contrary.
A proof rule (a presumption) is a rule about evidence. It does not mean the person is automatically guilty. It means the court may treat one fact as evidence of another fact unless there is evidence pointing the other way.
Possible Penalties
These are maximum sentences. Actual sentences depend on the facts, criminal history, and any mitigating or aggravating circumstances.
Dwelling-house — s. 348
IndictableOther place — s. 348
HybridUnlawfully in a dwelling-house — s. 349
HybridRelated offence — shown for completeness.
What these words mean
- Indictable
- The more serious way to prosecute an offence. It can carry higher maximum penalties.
- Summary conviction
- The less serious, usually faster way to prosecute an offence, with lower maximum penalties.
- Hybrid
- An offence the Crown can prosecute either way — by indictment or by summary conviction.
- Summary only
- Summary-only offences are prosecuted by summary conviction. The Criminal Code sets the maximum penalty in the specific offence section.
- Crown election
- The Crown prosecutor’s choice of which way to proceed on a hybrid offence.
Sentencing Factors
Things a court may treat as making the offence more serious when it decides a sentence. These are not separate offences.
Where a break and enter relates to a dwelling-house, Criminal Code s. 348.1 may require the sentencing court to treat the offence as more serious if the home was occupied, the person knew or was reckless about whether it was occupied, and violence or threats of violence were used.
Aggravating circumstance — home invasionView official source ↗
348.1 If a person is convicted of an offence under section 98 or 98.1, subsection 279(2) or section 343, 346 or 348 in relation to a dwelling-house, the court imposing the sentence on the person shall consider as an aggravating circumstance the fact that the dwelling-house was occupied at the time of the commission of the offence and that the person, in committing the offence,
(a) knew that or was reckless as to whether the dwelling-house was occupied; and
(b) used violence or threats of violence to a person or property.
Possible Defences and Legal Issues
This page covers more than one section. Possible defences and legal issues are set out by section below.
Break and enter — s. 348
Section 348 does not list a specific defence in the offence itself. The Crown still has to prove the charge. Depending on the facts, the issues may include who was involved, whether there was a break and enter or breaking out, whether the place fits the Criminal Code definition, and whether the person intended to commit an indictable offence.
Other issues may still depend on the facts, the evidence, and whether the Crown can prove the parts of the offence. Ordinary criminal-law defences may still apply depending on the exact charge and the facts. This is general legal information, not legal advice.
Being unlawfully in a dwelling-house — s. 349
Section 349 uses the words "without lawful excuse." In plain language, this means the court may have to consider whether the person had a lawful reason for being in the dwelling-house. This may involve questions about permission, legal authority, the type of building, and intent.
Common Legal Terms
Terms marked with a dotted underline in the article above are defined here and available in the full site glossary.
- Beyond a reasonable doubt Glossary entry →
- The high standard the Crown must meet to prove guilt.
- Crown prosecutor Glossary entry →
- A lawyer who conducts a criminal prosecution on behalf of the public.
- Indictable offence Glossary entry →
- A more serious type of Canadian criminal offence.
- Summary offence Glossary entry →
- Less-serious criminal offences
Legal sources
The official statute section(s) this page is based on. Always confirm against the official source before relying on it.
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Criminal Code s. 348 Main offenceLast reviewed by CCH: 2026-06-18View official source ↗
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Criminal Code s. 348.1 Sentencing factor (home invasion)Source current to: 2026-06-18View official source ↗
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Criminal Code s. 349Last reviewed by CCH: 2026-06-18View official source ↗
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Criminal Code s. 8(3) General defence authoritySource current to: 2026-06-18View official source ↗
Government References
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General legal information only. Not legal advice. We do our best to keep this page accurate and up to date, but criminal law can change and every case depends on its facts. Check the review date and consult the Criminal Code or a criminal defence lawyer before relying on this information.
About this page
Criminal Code Help explains selected Criminal Code offences and related legal concepts in plain language. The goal is to help readers understand the general meaning of the law without having to read the full statutory text.
This page is a simplified summary. It does not include every exception, definition, court interpretation, evidentiary issue, Charter issue, sentencing factor, or procedural rule that may apply in a real case.
Legal information, not legal advice
This page is general legal information only. It is not legal advice and should not be relied on as advice about any specific charge, investigation, court file, or personal situation.
Possible defences and legal issues depend on the facts, the evidence, the exact charge, current Canadian law, and the province or territory where the case is being handled. If you are facing a criminal charge or researching a real legal problem, speak with a criminal defence lawyer in your province or territory.