Break and Enter Charges in Alberta: What You're Actually Facing

Break and enter is, statutorily, a property offence. In practice — particularly where the building entered was a dwelling house — it is treated as one of the more serious offences on the indictment. A residential break and enter conviction carries a maximum sentence of life imprisonment. Where the offence is committed with violence in an occupied dwelling, it becomes "home invasion robbery" in the Alberta sentencing taxonomy, and the consequences shift dramatically. And where the object of the break-in is a firearm, the Criminal Code treats the conduct as its own life-maximum offence under section 98. Understanding which variant a particular file actually sits in — and where on the sentencing landscape it falls — is the first step in defending one of these charges.

This page explains how break and enter is structured under sections 348 through 351 of the Criminal Code, what the Crown must prove, what counts as a "break" and an "entry," how the statutory presumption of intent works, the related offences in sections 349 to 351, the separate firearm-theft offences in sections 98 and 98.1, the section 348.1 occupied-dwelling aggravating factor, where the Alberta sentencing landscape draws its lines between commercial break and enter, residential break and enter, and home invasion robbery, the eight-year starting point for home invasion robbery set in R v Matwiy, 1996 ABCA 63, the Charter and substantive defences that engage, and the collateral consequences a conviction triggers beyond the sentence itself. KJR Law represents people facing break and enter charges across Calgary and Southern Alberta.

Do Not Give a Statement Before You Speak with a Lawyer

Break and enter files are frequently built on circumstantial evidence — surveillance footage, tool marks, fingerprint or DNA recoveries, vehicle tracking, and statements from co-accused. The instinct to "explain" how property came into one's possession, why one was in a neighbourhood, or what one was doing at a particular time is overwhelming. The instinct is, in almost every case, the wrong one to follow. Statements given to police without legal advice routinely become the most useful piece of evidence the Crown has at trial. The right to remain silent under s. 7 of the Canadian Charter of Rights and Freedoms and the right to retain and instruct counsel without delay under s. 10(b) exist for this moment. Call a lawyer first. A statement, if it is in your interest, can be prepared properly later. A statement given at the police detachment cannot be unwound.

The Section 348 Framework

Section 348(1) of the Criminal Code creates the principal break and enter offence in three forms. A person is guilty who:

1. breaks and enters a place with intent to commit an indictable offence in it;
2. breaks and enters a place and commits an indictable offence in it; or
3. breaks out of a place after committing an indictable offence in it, or after entering with intent to commit an indictable offence in it.

The penalty turns on what kind of place was entered, and the two variants are classified differently. Under s. 348(1)(d), where the place is a dwelling-house, the offence is straight indictable and punishable by imprisonment for life — the Crown has no summary-conviction election. Under s. 348(1)(e), where the place is something other than a dwelling-house (a commercial break and enter), the offence is hybrid: the Crown may proceed by indictment, with a maximum of ten years, or by summary conviction. That election shapes everything downstream — the available procedure, the time limits, and the sentencing range.

"Place" is defined broadly in s. 348(3) — a definition shared with the section 351 instrument offence — and includes a dwelling-house, a building or structure or any part of it (other than a dwelling-house), a railway vehicle, a vessel, an aircraft, a trailer, or a pen or enclosure in which fur-bearing animals are kept in captivity for breeding or commercial purposes.

"Dwelling-house" is defined in s. 2 and includes the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence — including connected structures and units used in connection with the residence. Hotel rooms, apartments, condominiums, basement suites, and short-term rental accommodations all fall within the definition.

What Counts as "Break" and "Entry"

"Break" is defined in s. 321 of the Criminal Code and is broader than the ordinary meaning of the word suggests. To break, for the purposes of the offence, is to break any part of the place, internal or external, or to open any thing that is used or intended to be used to close or cover an internal or external opening. Opening a closed but unlocked door, raising an unlocked window, pushing aside a screen, removing a board nailed across an opening, or reaching through an existing opening to open a door from the inside — all can satisfy the "break" element. Where the place was already open and no act of opening occurred, the conduct may still be made out under s. 349 as being unlawfully in a dwelling-house, but the s. 348 charge requires some form of break.

"Entry" is similarly broad. Section 350 provides that, for the purposes of the offence, a person enters as soon as any part of their body or any part of an instrument they use is within the thing being entered. A hand reaching through a broken window to take property from inside is an entry. A crowbar inserted through the gap of a partially open door to pry it further is an entry. Full bodily entry is not required for the offence to be made out. Section 350 also deems a break and entry where a person obtained entrance by threat, artifice, or collusion with someone within, or entered without lawful justification or excuse through a permanent or temporary opening.

The Statutory Presumption of Intent

Section 348(2) of the Criminal Code creates a statutory presumption that frequently determines the trajectory of a break and enter file. Evidence that the accused broke and entered a place is, in the absence of evidence to the contrary, proof that they did so with intent to commit an indictable offence in the place. Evidence that the accused broke out of a place is, in the absence of evidence to the contrary, proof that they broke out after committing an indictable offence in the place, or after entering with intent to commit one.

The presumption shifts the practical burden onto the defence to point to evidence — not to prove an alternative explanation, but to raise a reasonable doubt about whether the entry was for an indictable purpose. Innocent explanations for being in a place — taking shelter, recovering personal property, intoxication leading to a wrong address, a mistaken belief in a right to enter — can rebut the presumption where they are supported by evidence. Without something to point to, the presumption frequently does the Crown's work for it.

Related Offences in Sections 349 to 351

The break and enter framework extends beyond s. 348 itself. The companion offences:

• Being unlawfully in a dwelling-house — s. 349. A person is guilty who, without lawful excuse, enters or is in a dwelling-house with intent to commit an indictable offence in it. The offence does not require a "break" — a person who enters through an open door with the requisite intent can be charged under this section. Hybrid: maximum ten years on indictment, or summary conviction. It is commonly available as a lesser included offence where the "break" element in a s. 348 charge is genuinely in issue.
• Possession of break-in instruments — s. 351(1). Possessing, without lawful excuse, any instrument suitable for the purpose of breaking into a place, motor vehicle, vault, or safe, knowing that the instrument has been used or is intended to be used for that purpose. Hybrid: maximum ten years on indictment, or summary conviction.
• Disguise with intent — s. 351(2). Having one's face masked or coloured, or being otherwise disguised, with intent to commit an indictable offence. Hybrid: maximum ten years on indictment, or summary conviction.
• Possession of property obtained by crime — s. 354. Frequently laid alongside break and enter where the accused is found in possession of items linked to the entered premises but direct evidence of the entry itself is limited.

A break and enter Information rarely contains only the s. 348 count. The companion charges let the Crown advance multiple theories on a single set of facts and pursue resolutions where the s. 348 case alone might be weaker than the supporting offences.

Breaking and Entering to Steal a Firearm: Sections 98 and 98.1

Where the object of the break-in is a firearm, the Criminal Code removes the conduct from the ordinary s. 348 scheme and into its own, more serious offence. Under section 98, it is an offence to break and enter a place with intent to steal a firearm in it, to break and enter and steal one, or to break out after doing so. "Break" carries the same s. 321 meaning, but the definition of "place" in s. 98 is wider than the s. 348 definition: it expressly includes any building or structure (or part of one) and any motor vehicle, vessel, aircraft, railway vehicle, container, or trailer. Section 98 is straight indictable and punishable by imprisonment for life — the same maximum as a residential break and enter, and it applies even where no violence is threatened against any person.

Its companion, section 98.1, addresses robbery to steal a firearm: committing a robbery within the meaning of s. 343 with intent to steal a firearm, or in the course of which a firearm is stolen. It too is straight indictable and punishable by imprisonment for life.

These are not technical add-ons. A firearm-theft break and enter is treated by the courts as among the most serious property-related offences in the Code, because of the obvious downstream danger of a stolen firearm entering circulation. Neither offence carries a mandatory minimum, but the life maximum, the seriousness with which these files are prosecuted, and the firearms-prohibition and other collateral consequences discussed below mean that custodial sentences are the norm. Where the firearm theft is from an occupied dwelling, the s. 348.1 aggravating factor described next applies directly.

Section 348.1: The Occupied-Dwelling Aggravating Factor

Section 348.1 of the Criminal Code codifies an aggravating factor that drives sentencing in the most serious break and enter files. Where an offence under s. 98 (breaking and entering to steal a firearm), s. 98.1 (robbery to steal a firearm), s. 279(2) (forcible confinement), s. 343 (robbery), s. 346 (extortion), or s. 348 (break and enter) is committed in relation to a dwelling-house, and the dwelling-house was occupied at the time, and the accused knew or was reckless as to whether it was occupied, and the accused used violence or threats of violence to a person or property — the court must treat those circumstances as aggravating on sentencing. Section 348.1 is the statutory bridge between an ordinary break and enter and a "home invasion robbery" in Alberta sentencing law.

The Sentencing Landscape: Commercial B&E, Residential B&E, and Home Invasion Robbery

Alberta sentencing in the break and enter space is structured across three principal categories.

Commercial break and enter. Hybrid; maximum ten years on indictment. The range covers everything from suspended sentences with restitution in the lowest-end first-offence files through to multi-year custodial sentences in serious or repeat-offender files. There is no Alberta Court of Appeal starting point for commercial break and enter. Sentencing is governed by the ordinary principles in s. 718 of the Criminal Code, the parity principle, and the available comparator authorities.

Residential break and enter (without home-invasion-robbery elements). Maximum life imprisonment. While Alberta has not articulated a single starting point for ordinary residential break and enter, the case law treats the offence with significant gravity, and the residential character of the entered place exerts substantial upward pressure on sentence. Sentences for repeat residential break and enter offenders frequently fall in the three- to six-year penitentiary range. First offenders can, in appropriate circumstances, receive non-custodial or shorter custodial dispositions. Section 348.1 has no application unless the additional elements — an occupied dwelling, knowledge or recklessness as to occupation, and violence or threats — are made out.

Home invasion robbery. The high end of the spectrum. The Alberta Court of Appeal in R v Matwiy, 1996 ABCA 63 (reported at (1996) 105 CCC (3d) 251) set the starting point for home invasion robbery at eight years' imprisonment. The Court identified the essential features of the offence: entry of a dwelling, a plan to commit the robbery in the dwelling, an expectation that the dwelling would be occupied, the use or threat of violence or weapons (or becoming armed during the commission of the offence), and an attempt to steal money or valuables. Where these features are present, the eight-year starting point applies and the analysis proceeds upward from that benchmark — not downward to it.

Matwiy remains the controlling authority in Alberta for this category of offence, and the Court of Appeal has continued to apply its framework — see, for example, R v Quinn, 2015 ABCA 250, where the Court upheld a sentence grounded in the Matwiy policy rationale on the security of people in their homes. The Supreme Court of Canada's treatment of starting points in R v Lacasse, 2015 SCC 64 and R v Parranto, 2021 SCC 46 has framed starting points as guidelines rather than binding tariffs, but the Alberta Court of Appeal continues to apply the Matwiy framework, and sentencing courts continue to use the eight-year starting point as the analytical anchor for home invasion robbery files.

The Defences That Actually Work

Break and enter prosecutions turn on a defined set of recurring issues. The arguments that engage:

Identity. The Crown's case in many break and enter files rests on circumstantial identification — fingerprints, DNA, video footage, vehicle association, witness identification, or social-media linkages. Each form of identification carries its own reliability issues. Forensic identification is reviewable for procedural and methodological flaws; eyewitness identification is subject to the framework in R v Hay, 2013 SCC 61 and the case law on photo lineups and dock identification.

Intent. The Crown must prove the accused entered with intent to commit an indictable offence. While s. 348(2) creates a statutory presumption, the presumption is rebuttable by evidence that raises a reasonable doubt about the purpose of the entry. Intoxication, a mistaken belief in a right to enter, and innocent explanations for the entry can all engage the analysis.

Lawful excuse or authority. Where the accused had — or honestly and reasonably believed they had — authority to be in the place, the entry is not unlawful. Domestic disputes involving former residents, business disputes involving contested access rights, and family-property situations frequently raise this issue.

Charter defences — search and seizure. Break and enter investigations frequently involve searches of vehicles, residences, backpacks, and electronic devices. Each search is reviewable. Where a search warrant was issued, the Information to Obtain is reviewable on the framework in R v Garofoli, [1990] 2 SCR 1421. Where a search occurred without a warrant, the Crown bears the burden of justifying it. Evidence obtained through Charter breaches is subject to exclusion under s. 24(2).

Charter defences — arrest, detention, and statements. Arrests must be supported by reasonable and probable grounds. Investigative detentions must comply with R v Mann, 2004 SCC 52. Statements taken without proper s. 10(a) and s. 10(b) compliance are vulnerable. The framework set in R v Grant, 2009 SCC 32 governs the admissibility analysis.

Co-accused statements and party liability. Many break and enter files involve multiple participants. The Crown frequently relies on co-accused statements and on party liability under s. 21 of the Criminal Code. Co-accused statements engage the principled approach to hearsay and the rule against using one accused's statement against another. Party liability requires proof of knowledge of the offence and an intent to assist — neither of which follows automatically from mere presence.

Collateral Consequences: What a Conviction Triggers Beyond the Sentence

A break and enter conviction can carry consequences beyond the sentence itself, and they fall into two legally distinct families. The first is ancillary orders — orders the sentencing court makes as part of the sentence, each with its own statutory test and each open to defence submissions at sentencing. The second is downstream consequences — consequences that flow from the conviction or record but are not imposed by the criminal court and are not part of the sentence. The distinction matters: the first is what the court orders; the second is what the conviction triggers elsewhere.

Ancillary orders the court may make.

• Restitution (s. 738). The court may order the offender to repay the victim for property loss or damage. Restitution is common in break and enter files, and what restitution can realistically be made is part of the sentencing conversation from the outset.
• DNA order (s. 487.051). Break and enter of a dwelling-house under s. 348(1)(d) is a primary designated offence: the court will order a DNA sample unless the offender establishes that the impact on their privacy and security of the person is grossly disproportionate to the public interest in DNA collection. Commercial break and enter under s. 348(1)(e) is a secondary designated offence: the court may order a sample on the Crown's application, weighing the prescribed factors.
• Firearms prohibition (ss. 109–110). Because a section 98 firearm-theft conviction concerns a firearm, a weapons prohibition is engaged — discretionary under s. 110 in the ordinary case, but mandatory under s. 109 where violence against a person was used or threatened in the commission of the offence, or where the person was already subject to a prohibition order. A first prohibition runs for at least ten years for ordinary firearms and for life for prohibited and restricted firearms.

Downstream consequences the conviction can trigger.

• Immigration jeopardy. For a permanent resident or foreign national, a break and enter conviction can amount to "serious criminality" under s. 36(1) of the Immigration and Refugee Protection Act — break and enter of a dwelling and the firearm-theft offences carry maximum terms (life) well above the ten-year threshold — which can lead to a finding of inadmissibility and to removal. These consequences arise under federal immigration law, not from the sentencing court, and they make early, immigration-aware advice essential for non-citizens.
• Employment and licensing. A criminal record can affect current and prospective employment, professional licensing, and positions of trust, and may surface on background checks long after the sentence is complete.
• Travel and the border. A break and enter record can affect admissibility to the United States and other countries, where entry decisions are made under their own law.

Defending these consequences is part of defending the file. Several of the ancillary orders are open to submissions on scope and duration, and the foreseeable downstream consequences are part of building the right resolution strategy from the first conversation.

Sentencing Outcomes Below the Custodial Range

Not every break and enter conviction results in penitentiary time. For first offenders, low-value commercial files, and files where the accused has taken meaningful steps toward rehabilitation and restitution, non-custodial outcomes remain available. A discharge under s. 730 is available on commercial break and enter only — a discharge is unavailable on a s. 348(1)(d) residential break and enter because the offence is punishable by life imprisonment. Suspended sentences with probation, conditional sentences in eligible cases under s. 742.1 following the 2022 Bill C-5 amendments, and short custodial sentences combined with probation are all part of the available toolkit. Sentencing strategy engages from the first conversation — what restitution can be made, what employment or community engagement can be demonstrated, what programming has been completed, and what the realistic placement on the sentencing landscape actually is.

Where We Appear

We act on break and enter files in the Alberta Court of Justice, the Court of King's Bench of Alberta, and the Court of Appeal of Alberta. From our Calgary office we travel to court in Airdrie, Cochrane, Canmore, Okotoks, Diamond Valley, Didsbury, Strathmore, Drumheller, Hanna, Brooks, Medicine Hat, Lethbridge, Fort Macleod, Taber, Pincher Creek, and Cardston, and we appear in matters arising on the Tsuut'ina, Siksika, and Kainai (Blood Tribe) Nations.

If You Have Been Charged, Call a Lawyer Today.

Break and enter files reward early engagement. The investigation phase — surveillance review, identification evidence assembly, forensic recovery — proceeds whether the accused has counsel or not. Defence-side investigation conducted in parallel, while the scene evidence is fresh and witnesses are available, can materially shape the resolution path. The initial consultation is at no charge.