Breaking and Entering in Canada: Sentences to Expect!
Being charged with breaking and entering in Canada can be frightening and overwhelming, especially if you’re unsure of what comes next. We understand the stress you’re facing, and our experienced legal team has guided many clients through situations just like yours. In this blog post, we’ll explain what breaking and entering charges are, possible defence strategies, and the legal process you can expect.
Global Context Of Breaking And Entering In Canada
When examining breaking and entering in Canada, it is important to view it within a global context. Canada has experienced a consistent decline in the rate of breaking and entering. Since 1991, there has been a notable reduction, with a fall of 38% in the last decade alone. Yet, it remains a common property crime with over 125,500 incidents reported in 2021. Moreover, the Criminal Code incorporates specific aggravating circumstances that can influence sentencing. This approach reflects a detailed legal structure aimed at both prevention and punishment.
Understanding Breaking and Entering In Canada
Understanding what breaking and entering in Canada is key to knowing what you’re up against and how the law views your case. In the next sections, we’ll break down the necessary information you need to know such as types, elements, and the legal process you will go through.
Definition of Breaking and Entering in the Criminal Code of Canada
Breaking and entering in the criminal code of Canada refers to unlawfully entering a place with the intent to commit an indictable offence inside, such as theft, assault, or mischief. “Breaking” does not always mean causing damage—it can include forcing a lock, prying open a window, or simply opening an unlocked door. This offence applies to both dwellings (homes) and non-dwellings (businesses, sheds, or other structures), with entries into homes treated far more seriously. Crucially, the intent to commit a crime inside must be proven, even if no offence ultimately took place.
Elements the Crown Must Prove in a Breaking and Entering Case
To secure a conviction for breaking and entering, the prosecution must prove specific legal elements beyond a reasonable doubt. Understanding these elements can help you and your lawyer identify possible weaknesses in the case against you.
Key elements the court must prove:
- Unlawful entry: You entered a property without permission from the owner or lawful occupant.
- Breaking: Any action that allowed entry, such as forcing a lock, prying a window, or opening an unlocked door.
- Place definition: The location entered qualifies as a “place” under the Criminal Code, which includes homes, businesses, and certain structures.
- Intent to commit an indictable offence: The Crown must show you intended to commit a serious crime inside, even if it was never carried out.
- Identification: Clear evidence that you were the person who committed the act.
Types of Breaking and Entering Charges in Canada
Breaking and entering in Canada is classified based on the nature of the act and the severity of the crime. The Canadian Criminal Code outlines various sections that specify different types of breaking and entering offenses, along with their respective descriptions and potential punishments. The table below summarizes these offenses, providing a clear overview of their legal definitions and consequences.
| Type of Offense | Description | Section of Canadian Law | Potential Punishment |
|---|---|---|---|
| Burglary (First-Degree) | Unlawful entry into an inhabited dwelling, often at night, with intent to commit a crime, usually theft. | Section 348 (1) | 2 years to life imprisonment |
| Burglary (Second-Degree) | Unlawful entry into a commercial property or other non-dwelling structures. | Section 348 (1) | 2 years to life imprisonment |
| Burglary (Third-Degree) | Unlawful entry with intent to commit a misdemeanor or non-violent felony. | Section 348 (1) | 2 years to life imprisonment |
| Home Invasion | Entering an occupied home with intent to commit a crime, often involving threats or harm to occupants. | Section 348.1 | Imprisonment for life |
| Criminal Trespass (First-Degree) | Unlawful entry into a dwelling with intent to commit a crime. | Section 177 & 349 (1) | punishment 2 years to 10 years |
| Criminal Trespass (Second-Degree) | Entering or remaining on enclosed or fenced property. | Section 177 & 349 (1) | punishment 2 years to 10 years |
| Criminal Trespass (Third-Degree) | Entering or remaining on clearly unauthorized property, such as no-trespassing areas. | Section 177 & 349 (1) | punishment 2 years to 10 years |
| Breaking and Entering | Forceful entry into a building or property without lawful permission. | Section 348(1) | Not exceeding 10 years |
Breaking and entering in Canada are serious crimes, each with specific legal definitions and varying degrees of severity. Understanding these offenses and their associated legal sections and potential punishments is crucial for both legal professionals and the public.
Difference Between a Dwelling-House and a Non-Dwelling-House
In Canadian law, the penalties and treatment of a breaking and entering charge depend heavily on whether the offence involves a dwelling-house or a non-dwelling-house. Understanding the distinction can help you know what to expect and why your charge is being handled a certain way.
Dwelling-House
A dwelling-house is any place where people live, either permanently or temporarily. This includes houses, apartments, condos, mobile homes, cottages, and even attached structures like garages, porches, or basements. Because a home is considered a private and highly protected space, breaking and entering into a dwelling-house is treated as one of the most serious property crimes in Canada.
- Penalty: The maximum sentence is life imprisonment, even if nothing was stolen, due to the invasion of personal security.
- Treatment in Court: Judges often impose harsher sentences, especially if the break-in happened at night, the occupants were home, or violence or threats were involved. First-time offenders may still face jail time for a dwelling-house offence if the circumstances are serious.
- Practical Impact: The Crown is less likely to agree to reduced charges or diversion programs for dwelling-house cases because of the strong public interest in protecting people’s homes.
Non-Dwelling-House
A non-dwelling-house is any building or structure not used as a residence. Examples include commercial properties, warehouses, barns, sheds, storage units, detached garages, and vacant buildings. While still a serious offence, breaking into a non-dwelling is generally viewed as less of a personal threat to others.
- Penalty: The maximum sentence is 10 years in prison for an indictable offence, or up to 2 years less a day if prosecuted summarily.
- Treatment in Court: Courts may be more open to non-custodial sentences (such as probation or conditional sentences) for first-time offenders, especially if the value of the loss or damage is low and no violence was involved.
- Practical Impact: Plea negotiations are often more flexible in non-dwelling cases, and alternative resolutions like restitution payments or community service may be possible in the right circumstances.
The Legal Process You Will Face in Breaking and Entering Cases
If you’re charged with breaking and entering in Canada, the legal process follows a structured path. Below is the correct process you can expect from the moment of arrest to the final resolution.
1. Arrest and Detention
The process begins when police arrest you based on what they believe are “reasonable grounds.” At this point, they will inform you of your right to remain silent and your right to speak to a lawyer. It’s important to provide only basic identification details and avoid discussing the facts of your case. You should request a call to a lawyer or duty counsel immediately. The police may search you, and any personal belongings will be taken for safekeeping.
2. Choosing Your Legal Representative
Selecting an experienced theft and property crimes lawyer is crucial. Look for someone who specializes in breaking and entering cases. Your lawyer will provide legal advice, represent you in court, and help you understand the charges and possible defenses.
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3. Booking and Processing
Once at the station, you will be identified, photographed, and fingerprinted. Any property you have will be recorded, and you will get it back unless it’s considered evidence. Depending on the circumstances, the police may release you directly with conditions (known as an “undertaking”), or they may hold you for a bail hearing. If you are released, carefully read and follow all conditions to avoid new charges.
4. Bail Hearing
Held (usually within 24 hours) before a justice of the peace or judge.
- The court decides if you’re released and on what conditions; a surety (supervisor) may be needed.
- Have a release plan: stable address, work/school info, and a responsible surety if possible.
- If released, do not breach conditions, breaches create new charges.
5. First Court Appearance
Your first appearance is not a trial but a procedural step where the charges against you are formally read. This is also when your lawyer will request “disclosure”, the evidence the Crown intends to use against you. It is common to ask for an adjournment to review the disclosure before deciding on next steps. If you have a lawyer, they can often appear on your behalf to save you from missing work or other obligations.
6. Disclosure Review
Once your lawyer receives the disclosure, they will review police notes, witness statements, surveillance footage, forensic reports, and any other evidence. The goal is to identify gaps, inconsistencies, or legal issues such as violations of your Charter rights. Your lawyer may request additional evidence or independent records, like security camera footage, to strengthen your defence. This stage is crucial for mapping out your legal strategy.
7. Pre-Trial Discussions and Resolution Meetings
In this stage, your lawyer engages with the Crown to discuss possible resolutions. These discussions can lead to the withdrawal of charges, a reduction to a lesser offence, or a negotiated sentence. In some cases, a judicial pre-trial is scheduled so a judge can help narrow down the issues or encourage a fair settlement. If a plea deal is on the table, your lawyer will explain the consequences in clear, straightforward terms so you can make an informed decision.
8. Preliminary Inquiry (For Certain Serious Cases)
In more serious indictable cases, there may be a preliminary inquiry, a hearing to determine if there is enough evidence for the case to proceed to trial. This step is not available in all cases, but when it is, it can help clarify the Crown’s case, preserve witness testimony, and identify weaknesses in the evidence before going to trial.
9. Trial
At trial, the Crown must prove your guilt beyond a reasonable doubt. Depending on the type of charge and election, your trial could be heard by a judge alone or by a judge and jury. The process includes opening statements, presentation of Crown evidence, cross-examination by your lawyer, presentation of your defence, and closing arguments. Your lawyer may also make applications to exclude certain evidence if your rights were violated.
10. Verdict and Sentencing
If you are found not guilty, you are acquitted, and all conditions are lifted. If you are found guilty, the judge will impose a sentence tailored to your case. Sentences can range from a discharge, fine, or probation, to a conditional sentence (house arrest) or imprisonment. The court will consider factors such as your criminal record, the nature of the break-in (home or non-dwelling), the harm caused, restitution to the victim, and any rehabilitation steps you’ve taken.
11. Appeal (If Needed)
If you believe there was a legal error or that the verdict was unreasonable, you may file an appeal within a strict deadline (often 30 days). Appeals can result in a new trial, a reduced sentence, or an overturned conviction. In some cases, you may even be granted bail while your appeal is pending.
what to expect in Breaking and Entering Charges
Breaking and entering in Canada carries serious legal consequences. The following sections detail what you can expect in terms of conviction, differences between first-time and repeat offenses, judicial penalties, societal impacts, and life after conviction.
If You Are a First-Time Offender vs. a Second-Time Offender
If you’ve been charged with breaking and entering, one of the first questions you might have is, “What kind of sentence am I looking at?” The answer depends a lot on if this is your first offence or you’ve been through the system before. To help you see the difference, we’ve outlined how Canadian courts generally treat first-time offenders compared to those with a prior conviction, and the types of sentences you might face in each situation.
| Factor | First-Time Offender of Breaking and Entering in Canada | Second-Time Offender of Breaking and Entering in Canada |
|---|---|---|
| Likelihood of Jail | Lower, especially for non-dwelling offences with no violence or serious damage. | Higher, particularly if the prior conviction was for a similar offence or recent. |
| Common Sentence Types | – Conditional Discharge (no conviction if conditions are met) – Suspended Sentence + Probation (up to 3 years) – Conditional Sentence Order (house arrest)- Short jail term (often under 90 days, sometimes served intermittently on weekends) | – Custodial Sentence (often 6 months to several years, depending on severity) |
| Max Penalty for Dwelling-House | Life imprisonment (rare for first offence; used in extreme cases) | Life imprisonment (more realistic risk if aggravating factors are present) |
| Max Penalty for Non-Dwelling | 10 years (indictable) or 2 years less a day (summary) | Same maximums, but sentences imposed are usually closer to the higher range |
| Court Focus | Rehabilitation, restitution, community safety without incarceration where possible | Deterrence, public safety, and reinforcing consequences for repeat behaviour |
| Plea Bargain Opportunities | Higher chance of reduced charges, diversion, or alternative sentencing programs | Limited; Crown may resist reductions or diversion due to repeat nature |
| Examples of Sentences | – 12 months probation with community service – 90 days jail served on weekends – Restitution order to victim | – 18 months in provincial jail – 3 years in penitentiary for aggravated dwelling break-in- Jail term followed by probation with strict conditions |
Minimum and Maximum Sentences for breaking and entering charges
Under the Criminal Code of Canada, breaking and entering sentences depend on whether the break-in involved a dwelling or another type of property.
- Dwelling-House (Home): The maximum penalty is life imprisonment, with no set minimum, but courts rarely impose the maximum except in severe cases.
- Non-Dwelling (Business, Shed, etc.): The maximum penalty is 10 years in prison for an indictable offence, or up to 2 years less a day if prosecuted summarily.
While there is no mandatory minimum for most cases, sentencing depends on factors like your criminal history, whether weapons or violence were involved, and the level of harm caused.
Possible Outcomes in a Breaking and Entering Case
Outcomes can vary widely depending on the facts of your case, your background, and the strength of your defence. Common outcomes include:
- Withdrawal of Charges – If the Crown determines there isn’t enough evidence to proceed.
- Acquittal – You are found not guilty after trial.
- Discharge (Absolute or Conditional) – No conviction is recorded, but conditions may apply.
- Probation – You must follow certain conditions for a set period while living in the community.
- Conditional Sentence – House arrest with strict rules, available for some less serious cases.
- Incarceration – Time served in jail or prison for more serious cases.
Life After Release: What Happens Next
Life after release for someone convicted of breaking and entering in Canada depends heavily on the type of sentence you served and the steps you take afterward. If you were on probation or served a conditional sentence, you’ll need to follow all remaining conditions until they expire. Having a breaking and entering conviction on your record can affect job opportunities, housing applications, and even travel to certain countries.
However, with legal guidance, you may be able to pursue a record suspension (pardon) in the future. Rebuilding your life after release is possible—many clients move forward by finding steady work, seeking counselling or rehabilitation programs, and re-establishing trust in their communities.
How Breaking and Entering Charges Are Classified in Canada
Breaking and entering in Canada is treated differently depending on the seriousness of the offence and the type of property involved. Less serious cases can be prosecuted as a summary conviction, while more serious situations, especially those involving a dwelling-house are handled as indictable offences, each carrying distinct procedures and potential penalties.
When breaking and entering is considered an Indictable Offence
- Dwelling-House Cases: If the break-in involves a place where someone lives (house, apartment, mobile home, etc.), it is always treated as an indictable offence under section 348 of the Criminal Code of Canada. The maximum penalty is life imprisonment.
- Serious Non-Dwelling Cases: Even if it’s not a residence, the Crown may proceed by indictment if:
- The value of the stolen or damaged property is high.
- Violence or threats were involved.
- Weapons were used.
- You have a significant criminal record, especially for similar offences.
- The offence caused major harm or public concern (e.g., large-scale commercial theft).
- Aggravating Factors Present: Night-time entries, targeting vulnerable victims, or breaking court orders can all push the case toward indictment.
When breaking and entering is considered a Summary Conviction?
- Non-Dwelling-House Cases: If the break-in involves a building or structure that is not a residence (business, storage unit, shed, barn, etc.), it is a hybrid offence, meaning the Crown can choose to proceed summarily.
- Less Serious Circumstances: The Crown is more likely to proceed summarily if:
- No violence or weapons were involved.
- The value of the property was low.
- The damage caused was minimal.
- You are a first-time offender.
- There is evidence of remorse or cooperation with authorities.
- Penalties for Summary: Maximum 2 years less a day in a provincial jail, a fine of up to $5,000, or both.
Your Rights & Defense Strategies for Breaking and Entering Charges in Canada
Facing breaking and entering in Canada can be overwhelming, but understanding your legal rights and possible defence strategies is essential. With the right approach, you can protect your interests and challenge the allegations effectively.
Defense Strategies
Building a strong defence starts with carefully examining the evidence and circumstances of your case. The right strategy will depend on the facts, but there are several common approaches lawyers use to defend against breaking and entering in Canada.
Possible Defence Strategies:
Rights of the Accused
If you are accused of breaking and entering in Canada, you have important rights under the Charter of Rights and Freedoms. These include the right to remain silent, the right to speak to a lawyer without delay, and the right to be presumed innocent until proven guilty beyond a reasonable doubt. You are also entitled to a fair trial, full disclosure of the Crown’s evidence, and protection from unlawful search and seizure.
Other Property Crimes You Need to Know
Property crimes take many forms, with some offenses overlapping in how they are committed or prosecuted. Understanding their differences and connections can help clarify their legal implications.
Criminal Mischief vs. Breaking and Entering
Criminal mischief involves intentionally damaging or tampering with another person’s property, such as vandalizing a car or breaking a window. Breaking and entering, on the other hand, is about unlawfully entering a structure, whether or not damage occurs. These two offenses can be linked—someone committing criminal mischief might break a window and then decide to enter the property, leading to additional charges. However, breaking and entering does not always involve damage, whereas criminal mischief is defined by it.
Breaking and Entering vs. Theft
Breaking and entering is the unlawful entry into a property, but it does not necessarily mean anything was stolen. Theft, or larceny, involves taking another person’s property with the intent to permanently keep it. While breaking and entering can be committed without theft (such as trespassing into an abandoned building), theft can also occur without breaking and entering (such as stealing an unattended bag in a public place). When both happen together, such as breaking into a house and stealing valuables, the offense becomes more serious, often leading to burglary charges.
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Conclusion
Understanding the legal complexities of breaking and entering in Canada is vital, given the severe penalties and long-term consequences associated with this crime. By staying informed and seeking legal advice when necessary, individuals can better navigate these challenging situations. Knowledge of one’s rights and the law helps ensure proper legal defense and potentially mitigate the impact of such charges.
