Break and Enter Charges
Break and enter is one of the most seriously prosecuted property offences in Canada. Our Calgary criminal defence lawyers have handled these cases at every level and know exactly where these prosecutions are vulnerable.
This page was written by the criminal defence lawyers at Hoare Claxton based on their experience appearing in Calgary courts. It is reviewed periodically for accuracy.
Break and enter is one of the offences the Crown treats most seriously. The principle behind it is straightforward: every person should feel safe in their home. When a residence is involved, prosecutors pursue these charges with that principle in mind and sentencing reflects it.
That does not mean the charge cannot be effectively defended. It means the defence needs to be built carefully, from the moment you are charged, not after the Crown has had months to construct their case.
Our office has handled break and enter cases across the full spectrum, from first offence commercial premises matters through to residential break and enter charges with violent intent allegations. Call (587) 355-8889 for a free consultation. Available 24 hours a day.
What Break and Enter Actually Means Under the Criminal Code
Break and enter is defined under section 348 of the Criminal Code as entering a place by breaking in, or being unlawfully present in a place, without colour of right or lawful permission. The charge almost always carries a sub-element that defines the purpose or outcome of the entry.
The key distinctions that affect how serious the charge is and what sentence is at stake:
Break and Enter with Intent
Entering a premises with the intention to commit an indictable offence inside, most commonly theft. The Crown does not need to prove the offence was completed, only that the intent existed at the time of entry. Maximum sentence is ten years for a non-residential premises and life imprisonment for a dwelling house.
Break and Enter and Commit
Where an indictable offence was actually committed inside the premises after entry. Again, the maximum for a dwelling house is life imprisonment. For other premises, ten years. The Crown takes the completion of the underlying offence as an aggravating factor in sentencing.
Breaking Out
Leaving a premises after committing or attempting to commit an indictable offence inside is also captured under section 348. The charge applies to the exit as much as the entry.
Residential vs. Commercial Premises
This distinction matters enormously. A break and enter into a dwelling house, meaning a home where people live, is treated as categorically more serious than a commercial premises. The maximum sentence for a residential break and enter is life imprisonment. The Crown's position on resolution and sentencing reflects that gap significantly.
Break and Enter with Intent to Use Violence
Where the alleged intent was not theft but violence against a person inside the premises, the charge becomes one of the most serious property-adjacent offences in the Criminal Code. These cases are prosecuted at the highest level.
The Defences That Actually Work
There are meaningful defences available to break and enter charges and the right defence depends entirely on the specific facts of your case.
Colour of Right
If you had an honest belief, even if mistaken, that you had permission or a legal right to be in the premises, colour of right is a complete defence to the charge. This arises more often than people expect, including in property disputes, co-tenancy situations, and relationship breakdowns where access rights are genuinely unclear.
Identity
Many break and enter prosecutions rely heavily on circumstantial evidence, surveillance footage of varying quality, fingerprint analysis, or witness identification. Each of these evidence types has vulnerabilities. We scrutinize identity evidence in every file because it is often where these cases are most fragile.
Absence of Intent
The Crown must prove the specific intent alleged in the charge. Where the evidence of intent is thin or circumstantial, challenging that element directly is a viable and often effective defence strategy.
Charter Violations
If police conducted an unlawful search that produced the evidence against you, or if your right to counsel was not provided without delay following your arrest, those are grounds for challenging the admissibility of that evidence. In break and enter cases that rely on physical evidence recovered during a search, a successful Charter argument can be determinative.
What the Sentencing Range Actually Looks Like
People charged with break and enter are often shocked by the exposure they are facing. The maximum sentences are serious, but what actually happens at sentencing depends on a range of factors that experienced counsel addresses directly in negotiations with the Crown and before the court.
First offence, commercial premises, no violence, full recovery of property: significantly different position than repeat offence, residential premises, occupant present. The context drives the outcome. Understanding where your specific case sits on that spectrum, and what arguments move it in your favour, is exactly what the first consultation is for.
A defence built from the first call.
We Listen
You tell us exactly what happened, including your relationship to the premises, what the police allege, and what evidence they have referred to. Everything is protected by solicitor-client privilege from the first call.
We Identify Risks
We assess the charge, the sub-element alleged, whether the premises was residential or commercial, and where the Crown's evidence is most vulnerable. We look for Charter issues in how the investigation was conducted from the beginning.
We Explain Your Options
We tell you what the charge actually means for your specific situation, what the realistic sentencing range looks like, and what defence strategy gives you the best available outcome. No softening. No vague reassurances.
We Take Action
We review disclosure thoroughly, challenge identification and intent evidence, pursue Charter arguments where they apply, and engage the Crown on resolution wherever the facts support a negotiated outcome in your interests.
Frequently Asked Questions
What is the difference between break and enter with intent and break and enter and commit?+
Break and enter with intent means the Crown is alleging you entered the premises with the purpose of committing an indictable offence inside, most commonly theft, even if that offence was never completed. Break and enter and commit means the Crown alleges the indictable offence was actually carried out after entry. Both are serious charges. Both carry maximum sentences of life imprisonment for residential premises.
Does it matter if nothing was stolen?+
Yes, but not in the way most people expect. Nothing being stolen does not eliminate the charge. The Crown can still proceed on break and enter with intent even if the accused left empty-handed. However, the absence of a completed theft is a relevant factor in sentencing and can affect how the Crown approaches resolution discussions.
What is colour of right and how does it apply to break and enter?+
Colour of right is a legal defence that applies when the accused had an honest belief that they had permission or a legal right to be in the premises, even if that belief turned out to be wrong. If you genuinely believed you had access rights to the property, whether because of a relationship with the owner, a tenancy dispute, or some other basis, colour of right is a complete defence to the charge. It is one of the first things we assess in every break and enter file.
Is break and enter into a home treated differently than a business?+
Yes, significantly. A dwelling house, meaning a residence where people live, carries a maximum sentence of life imprisonment for both break and enter with intent and break and enter and commit. The Crown's position on resolution and the court's approach to sentencing both reflect the elevated seriousness of residential break and enter. Commercial premises matters are still serious but the exposure and the Crown's approach are materially different.
Can I be convicted of break and enter if I was only outside the property?+
The Criminal Code captures a broader range of conduct than simply being inside a premises. Being unlawfully present on enclosed property, attempting to gain entry, or being found in circumstances that give rise to a presumption of intent can all result in charges under section 348 or related provisions. The specific facts of where you were and what you were doing matter enormously to how the charge is framed and how it is defended.
Related Practice Areas
Break and enter charges frequently appear alongside theft, mischief, and weapons allegations. Where violence against a person is alleged, the charge overlaps with our assault and violent offences practice.
Theft and Property Offences Calgary
Break and enter charges frequently appear alongside theft allegations arising from the same incident.
READ THE DEFENCE GUIDEAssault Offences Calgary
Where violence against a person is alleged inside the premises, assault charges typically accompany the break and enter.
READ THE DEFENCE GUIDEGeneral Criminal Defence Calgary
Full-service criminal defence across every charge type in Alberta.
READ THE DEFENCE GUIDECharged With Break and Enter in Calgary?
The sentencing exposure on a residential break and enter is serious. The time to build a defence is now, not after the Crown has had months to prepare their case.
Call (587) 355-8889. Free consultation. Available 24 hours a day.