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 an occupied dwelling is entered and violence or threats are used to steal, the conduct is typically prosecuted as robbery, and where it has the features the Alberta Court of Appeal has defined, it is sentenced as "home invasion robbery" from an eight-year starting point. 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, the reverse-onus bail rules that apply to residential break and enter, 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 2026 sentencing amendments that reach break and enter, 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. Acting on it before getting legal advice is a serious risk. A statement given to police without legal advice can become one of the most useful pieces of evidence the Crown has at trial. You are not obliged to give the police a statement. Once a person is arrested or detained, s. 7 of the Canadian Charter of Rights and Freedoms protects the right to choose whether to speak to the authorities (R v Hebert, [1990] 2 SCR 151), and s. 10(b) gives the right to retain and instruct counsel without delay and to be told of that right. 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.

Bail: The Reverse Onus on Residential Break and Enter

For most offences, the Crown must show cause why an accused should be detained or released on conditions. Section 515(6) of the Criminal Code reverses that onus for listed charges. Since July 15, 2026, the list includes break and enter of a dwelling-house under s. 348(1)(d) (s. 515(6)(a)(xiii)). The firearm-theft offences in ss. 98 and 98.1 were already on the list (s. 515(6)(a)(vi)), as is any indictable offence alleged to have been committed while the accused was on release for another indictable offence (s. 515(6)(a)(i)). In a reverse-onus case, the accused must show why detention is not justified by clearly demonstrating that their proposed release plan addresses the risks they pose, as those risks relate to the grounds for detention in s. 515(10). Commercial break and enter under s. 348(1)(e) is not itself a listed offence.

Before releasing a person charged under s. 348(1)(d), the justice must consider, in the interests of the safety and security of any person — particularly a victim, a witness or a justice system participant — whether to include conditions that the accused stay away from specified places or areas, not possess specified instruments suitable for breaking into a place or motor vehicle, and remain at their residence at specified times (s. 515(4.4)). These bail changes apply to every matter ongoing on July 15, 2026, whatever the date of the alleged offence (S.C. 2026, c. 11, s. 58(2)). In a residential break and enter file, the bail hearing is the first contested step, and the release plan is built before it.

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 as the whole or any part of a building or structure that is kept or occupied as a permanent or temporary residence. It includes a building within the curtilage that is connected to the dwelling by a doorway or a covered and enclosed passageway, and a unit designed to be mobile and used as a residence while it is being used as one. Apartments, condominiums, basement suites, hotel rooms and short-term rentals can all fall within the definition where they are kept or occupied as a residence.

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 nothing was broken or opened, s. 350(b) can still deem a break and entry, as described below. Where neither a break nor the deeming provision is made out, being unlawfully in a dwelling-house under s. 349 does not require a 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 can determine 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. In the absence of evidence to the contrary, the presumption supplies proof of the intent element.

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 also makes the conduct its own offence, which the Crown can charge instead of s. 348. 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 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. Both are reverse-onus offences at bail. Where the firearm is stolen from an occupied dwelling, s. 98 and s. 98.1 are among the offences to which the s. 348.1 aggravating factor described next can apply.

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. Repeat residential break and enter offenders can face penitentiary sentences. 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 a starting point of eight years' imprisonment for home invasion robbery committed by a mature offender with no prior record. The Court identified the essential features of the offence (para 30): a plan to commit the robbery, targeting a dwelling for money or property expected to be there; arming with an offensive weapon; breaking or forcing entry into a dwelling known or reasonably expected to be occupied; confining the occupants, even briefly; threatening them with death or bodily harm while armed; and stealing or attempting to steal money or other valuable property. Where these features are present, the eight-year starting point is the reference point, and the sentence is then adjusted for the aggravating and mitigating circumstances of the offence and the offender.

Matwiy's eight-year starting point applies to home invasion robbery as the Court defined it (para 30). In R v Quinn, 2015 ABCA 250, a break and enter of a dwelling to commit assault, with no robbery, the majority upheld a five-year global sentence, finding that the sentencing judge had not applied Matwiy directly but had drawn on its statements about the security of people in their homes (para 12). The dissenting judge would have reduced the sentence, cautioning that a s. 348(1) offence that shares some features with a home invasion robbery does not thereby become one (paras 38–39). 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: they give the sentencing judge a frame of reference for the gravity of the offence, but a judge need not refer to one, and departing from one is appropriate where proportionality requires it (Parranto, paras 36, 40–41).

The 2026 amendments. S.C. 2026, c. 11 (Bill C-14) added several provisions that bear on break and enter sentencing, each with its own temporal rule:

• Second or subsequent s. 348 offence (s. 718.06). A court sentencing a second or subsequent offence under s. 348 must give primary consideration to denunciation and deterrence. Parliament has directed that this applies to matters ongoing on July 15, 2026; its application to an offence committed before that date may be contested.
• Intent to sell or barter (s. 334.1(1)). For an offence under s. 348, s. 351 or s. 354, the court must treat as aggravating the fact that the offence was committed with intent to sell or barter the stolen property or to fraudulently return it to a retail merchant. The same ongoing direction, and the same open question for earlier offences, apply.
• Violence with a recent prior conviction (s. 718.2(a)(viii)). Where violence, threats or attempts of violence were used against another person and the offender has been convicted of such an offence within the previous five years, the court must treat that as aggravating. The same ongoing direction and open question apply. For offences committed on or after July 15, 2026, s. 718.3(4)(b)(iv) also directs the court to consider consecutive sentences in that situation.
• Vehicle theft arising from a break and enter (s. 333.11(1)). For offences committed on or after July 15, 2026, a sentence for motor vehicle theft involving violence against a person (s. 333.1(3)) or committed for a criminal organization (s. 333.1(4)) must be served consecutively to any s. 348 sentence arising out of the same event or series of events.

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 carries well-recognized frailties, and identification testimony that could not on its own prove identity beyond a reasonable doubt cannot alone support a conviction (R v Hay, 2013 SCC 61, paras 40–41); photo lineups and dock identifications raise their own reliability issues.

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 authority to be in the place, the entry is not unlawful. An honest belief in that authority, even a mistaken one, can bear on intent and on whether an entry was "without lawful justification or excuse" under s. 350(b)(ii). 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 question on review is not whether the reviewing judge would have issued it, but whether, on the record before the issuing justice — with misleading information excised, and amplified only to correct good-faith errors — it could have issued (R v Garofoli, [1990] 2 SCR 1421; R v Morelli, 2010 SCC 8). 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. Liability as an aider or abettor under s. 21(1)(b) or (c) requires knowledge of the offence and an intent to assist or encourage — 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. The offender's means or ability to pay does not by itself prevent an order (s. 739.1). For offences committed on or after July 18, 2026, a payment term in a probation order or conditional sentence order that is still unpaid when the order ends is deemed to continue as a restitution order (s. 740.1).
• 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 whether the Crown proceeded by indictment or summarily, because it is listed by name in s. 487.04; the straight-indictable firearm-theft offences in ss. 98 and 98.1 are secondary designated offences too. For a secondary designated offence, the court may order a sample on the Crown's application, weighing the prescribed factors (s. 487.051(3)).
• Firearms prohibition (ss. 109–110). A prohibition is mandatory under s. 109(1)(a) on conviction (or a discharge, where one is available) for an indictable offence with a maximum of ten years or more in the commission of which violence against a person was used, threatened or attempted. Where violence against a person was involved, that takes in a residential break and enter, a commercial break and enter prosecuted by indictment, and the s. 98 and 98.1 offences. It is also mandatory under s. 109(1)(d) where the offence involved a firearm or other listed item while the person was already prohibited. A first s. 109 order prohibits ordinary firearms for at least ten years after release from imprisonment (or after conviction or discharge, if no imprisonment is imposed), and prohibited and restricted firearms for life; a subsequent order runs for life. Where s. 109 does not apply, a s. 98 conviction concerns a firearm, so the court must consider a discretionary order of up to ten years under s. 110(1)(b); s. 110(1)(a) does the same for other offences in which violence was used, threatened or attempted.

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)(a) of the Immigration and Refugee Protection Act, which turns on an offence maximum of at least ten years or a sentence of more than six months. Every s. 348 offence meets the maximum test — life for a dwelling, ten years otherwise — as do ss. 98, 98.1, 349 and 351, and under s. 36(3)(a) a hybrid offence is treated as indictable even where the Crown proceeded summarily. A finding of serious criminality can lead to inadmissibility and 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 unavailable on a s. 348(1)(d) residential break and enter and on the s. 98 and 98.1 firearm-theft offences, because each is punishable by life imprisonment; it remains available on commercial break and enter and on the ten-year companion offences in ss. 349 and 351. 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.