Break and Enter, Private Dwelling (Sentencing Cases)

This page was last substantively updated or reviewed January 2021. (Rev. # 90577)

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Offence Wording

Breaking and entering with intent, committing offence or breaking out

348 (1) Every one who

(a) breaks and enters a place with intent to commit an indictable offence therein,

(b) breaks and enters a place and commits an indictable offence therein, or

(c) breaks out of a place after

(i) committing an indictable offence therein, or

(ii) entering the place with intent to commit an indictable offence therein,

is guilty

(d) if the offence is committed in relation to a dwelling-house, of an indictable offence and liable to imprisonment for life, and

(e) if the offence is committed in relation to a place other than a dwelling-house, of an indictable offence and liable to imprisonment for a term not exceeding ten years or of an offence punishable on summary conviction.

[omitted (2) and (3)]
R.S., 1985, c. C-46, s. 348; R.S., 1985, c. 27 (1st Supp.), s. 47; 1997, c. 18, s. 20.

– CCC (CanLII), (DOJ)

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Aggravating circumstance — home invasion

348.1 If a person is convicted of an offence under section 98 [breaking and entering to steal firearm] or 98.1 [robbery to steal firearm], subsection 279(2) [forcible confinement] or section 343 [robbery – forms of offence], 346 [extortion] or 348 [break and enter] 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.

2002, c. 13, s. 15; 2008, c. 6, s. 34.

– CCC (CanLII), (DOJ)

---

Breaking and entering to steal firearm

98 (1) Every person commits an offence who

(a) breaks and enters a place with intent to steal a firearm located in it;

(b) breaks and enters a place and steals a firearm located in it; or

(c) breaks out of a place after

(i) stealing a firearm located in it, or

(ii) entering the place with intent to steal a firearm located in it.

[omitted (2) and (3)]

Punishment

(4) Every person who commits an offence under subsection (1) [breaking and entering to steal firearm] is guilty of an indictable offence and liable to imprisonment for life.
R.S., 1985, c. C-46, s. 98; R.S., 1985, c. 27 (1st Supp.), s. 13; 1991, c. 40, s. 11; 1995, c. 39, s. 139; 2008, c. 6, s. 9.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Digests

Case Name	Prv.	Crt.	Sentence	Summary
R v Tollestrup, 2017 ABPC 67 (CanLII), per Fradsham J	AB	PC		"the 46-year old accused person pled guilty to 3 counts of break and enter into a residence, one count of attempted break and enter into residence, and 2 counts of breach of probation. At the time, the accused person had been addicted to opiates for 20 years, and had a lengthy and related criminal record. He was on probation when he committed the offences for which he pled guilty. Fradsham PCJ sentenced the accused person to 4 years or 1,460 days' imprisonment, less credit for time served, for net sentence of 222 days. Total sentence, before Fradsham PCJ applied the totality principle was 66 months, broken down as 15 months, 17 months and 20 months for each break and enter (consecutive) 7 months for the attempted break and enter (consecutive) and 4 months for the breach of probation (consecutive). Fradsham PCJ reduced the accused person's sentence because of the accused person's genuine desire and efforts to break out of his cycle of criminal activity." (Quoting from R v SmithLowe, 2018 ABQB 896 (CanLII)), at para 63 Find summaries of case.
R v Jones, 2017 ABPC 69 (CanLII), per Pharo J	AB	PC	2 months imprisonment (theft) 18 months imprisonment (B&E) [penalty unknown] (theft)	The offender was convicted of break and enter and theft. He smashed through the bedroom window of a home while no one was present and stole about $3,100 of property. He had a lengthy criminal record. " accused person was a 33-year old drug addict, which he said served as motivation to commit the offences. While working for an employer who owned horses, the accused person twice sold horses without his employer's permission and retained proceeds of sales. He also broke into a private dwelling house and stole a camera and jewellery. He pleaded guilty to two counts of theft and one count of break and enter and committing indictable offence. Pharo PCJ sentenced the accused person to global sentence of 20 months' imprisonment, which was comprised of 8 months for break and enter, plus two months for each theft. The theft sentences would be served concurrently to each other, but consecutively to break and enter sentence. He said that the paramount sentencing principles on break and enter charge were deterrence and denunciation. He also considered rehabilitation, but held that it had less weight because accused was mature individual who had benefit of previous probation and conditional sentence orders." (Quoting from R v Smith-Lowe, 2018 ABQB 896 (CanLII)), at para 65 Find summaries of case.
R v Herrington, 2017 ABCA 61 (CanLII), per curiam	AB	CA	15 months imprisonment (B&E) [penalty unknown] (B&E instr.)[penalty unknown] (breach)	The offender pleaded guilty B&E, poss'n of B&E instruments, and breach of probation. Find summaries of case.
R v Clarke, 2016 ABPC 255 (CanLII), per Groves J	AB	PC		"the accused person pled guilty to break and enter of a dwelling house in which he and 2 others stole property worth $7,500. He was 18-years old at time of offences. He had a difficult upbringing involving parental addiction, his father abandoning the family, and involvement of social services. The accused person had no prior criminal record. He had experienced substance abuse issues but had taken steps to address them through a residential treatment programme. As well, the accused person had incurred no further charges since being release in relation to the subject offences. Groves PCJ considered these, along with the accused person's youth, to be mitigating factors. He sentenced the accused person to 60 days' imprisonment and 12 months' probation." (Quoting from R v Smith-Lowe, 2018 ABQB 896 (CanLII)), at para 62 Find summaries of case.
R v Green, 2015 CanLII 77573 (NLSCTD), per Handrigan J	NL	SC	12 months imprisonment	Find summaries of case.
R v Martyn, 2014 ABCA 151 (CanLII), per curiam	AB	CA	5 years imprisonment	offender charged with 5 B&Es and other charges. $53k worth of lost property. Offender was cooperative. He had a long criminal record. Find summaries of case.
R v Legault, 2013 BCPC 155 (CanLII), per Bennett J	BC	PC	5 years imprisonment	Guilty plea for two residential breaks. 33 prior convictions for B&E. Find summaries of case.
R v Webb, 2013 ABCA 136 (CanLII), per Watson JA	AB	CA	3 years imprisonment	offender was a "professional" burglar Find summaries of case.
R v McAuley, 2012 CanLII 65027 (NL PC), per Gorman J	NL	PC	Suspended	Find summaries of case.
R v Duerksen, 2012 MBCA 41 (CanLII), per curiam	MB	CA	4 years imprisonment	96 breaks over 21 years--offender was 36 years old with no record--appeal from CSO Find summaries of case.
R v Perrin, 2012 NSCA 85 (CanLII), per Beveridge JA	NS	CA	30 days	Offender was 21 years old and was serving a conditional sentence for a fraud-related offence. He broke into a cottage that was a closed for the season. He pled guilty at early opportunity. CSO he was serving was collapsed. Sentence upheld on appeal. Find summaries of case.
R v John, 2012 ONCA 114 (CanLII), per curiam	ON	CA	5 years imprisonment	break and enter, extensive record Find summaries of case.
R v Ramsdale, 2012 ABPC 37 (CanLII), per Van de Veen J	AB	PC	22 mo	Find summaries of case.
R v Walbourne, 2012 CanLII 26671 (NL PC), per Orr J	NL	PC	3 years imprisonment	3 breaks (3 years each) and 2 assaults (6 months each) Find summaries of case.
R v Frigault, 2012 NBCA 8 (CanLII), per Quigg JA	NB	CA	4 years imprisonment	Find summaries of case.
R v Irving, 2012 ABPC 3 (CanLII), per Ogle J	AB	PC	5 years imprisonment	6 B&Es Find summaries of case.
R v Grenfal, 2011 BCPC 357 (CanLII), per McKay J	BC	PC	2 years imprisonment	break and enter into dwelling steals car; police chase Find summaries of case.
R v Campbell, 2011 ONCJ 593 (CanLII), per Tuck-Jackson J	ON	CJ	30 months imprisonment	break into 2 apartments; long record Find summaries of case.
R v Davidson, 2011 NSPC 14 (CanLII), per Atwood J	NS	PC	3 years imprisonment (B&E x 2)	Find summaries of case.
R v Lywood, 2010 ABCA 140 (CanLII), [2009] AJ No 1524, per Martin JA	AB	CA	6 years	offender had a related record Find summaries of case.
R v Stewart, 2009 NSSC 7 (CanLII), per Beveridge J	NS	SC	4 years imprisonment	93 prior convictions Find summaries of case.
R v Auger, 2009 ABCA 310 (CanLII), per Ritter JA	AB	CA	9 months after 3 months remand	broke into residence and stole a laptop; guilty plea; Accused prior convictions: B&E x2; 1 x possession stolen property; 3x mischief Find summaries of case.
R v Cairns, 2009 BCCA 105 (CanLII), per Levin JA	BC	CA	10 months incarceration after 9 months pre-trial custody	age 31; broke into residence, stole jewellery; fell asleep on couch; record of 40 prior convictions: 21 property related Find summaries of case.
R v Powers, 2009 ABCA 188 (CanLII), per Berger JA	AB	CA	time served with 3.5 months credit	Break and enter x 2; stole times in purse; developmental disability Find summaries of case.
R v Dunphy-Taylor, 2009 CanLII 21948 (NL P.C.), per Gorman J	NL	PC	15 months before credit	unemployed and homeless 20 year old; prior B&E record; occupied house while residents away for winter. Find summaries of case.
R v Thomas, 2009 BCCA 233 (CanLII), per Groberman JA	BC	CA	4 years imprisonment	36 year old, long record; broke into 6 houses while residents were away; ransacked the places Find summaries of case.
R c Béchard, 2009 QCCQ 848 (CanLII), per Vauclair J	QC	PC	10 months CSO	50 year old with dated record, broke into an apartment, stole tools and sold at pawn shop Find summaries of case.
R v MacKenzie, 2007 NSCA 10 (CanLII), per Bateman JA	NS	CA	3 years after remand time	age 44; record of 32 prior convictions, property related. Find summaries of case.
R v Smith, 2007 BCPC 432 (CanLII), per Ellan J	BC	PC	2 years imprisonment; 3 years probation	broke into six residences over 23 days; 2 months remand; long standing serious drug problem; record was lengthy including 15 prior convictions for theft. Find summaries of case.
R v Abaroa-Martinez, 2007 BCSC 571 (CanLII), per Hood J	BC	SC	9 months imprisonment	broke into the home of a friend to steal property; a dozen offences on record, mostly minor Find summaries of case.
R v Faulconer, 2007 BCCA 289 (CanLII), per Donald J	BC	CA	A joint Sub. 2 years	44 years old; plead guilty to B&E x 3; theft; forged documents over 5 weeks; 60 prior convictions Find summaries of case.
R v MacKenzie, 2007 NSCA 10 (CanLII), per Bateman JA	NS	CA	3 years	32 prior convictions; broke into 2 residences; long history of drugs Find summaries of case.
R v Powis, 2007 BCCA 108 (CanLII), per Ryan JA	BC	CA	3 years imprisonment	6 residential and 1 commercial B&E. Was on CSO for first B&E at the time. Find summaries of case.
R v Leander Seymour, 2007 CanLII 17364 (NL P.C.), per Gorman J	NL	PC	15 months imprisonment	2 break ins into cabins; lengthy record; CSO request rejected Find summaries of case.
R v Doherty, 2006 BCPC 208 (CanLII), per Ball J	BC	PC	3 years	5 counts of residential B&E. stole electronics and furniture; high value of property; was serving CSO at time Find summaries of case.
R v Downey, 2006 CanLII 10206 (ON CA), , 2006 CarswellOnt 2018, per curiam	ON	CA	A Joint Sub. 10 months after 2 months remand	37 year old; plead guilty to B&E into dwelling; record of 37 prior convictions; 14 for Break & Enter; on probation 5 times in past Find summaries of case.
R v Gale, 2006 CanLII 9033 (NL PC), , 2006 CarswellNfld 97 (Prov. Ct.), per Gorman J	NL	PC		age 39; over 2 years committed 4 thefts and 1 B&E; record of 8 prior B&Es Find summaries of case.
R v Hackett, 2006 CanLII 39900 (NL PC), per Porter J	NL	PC		"the accused, while intoxicated and under influence of cocaine, broke into his estranged mother’s home, and caused significant damage therein, including tearing the door off the refrigerator, breaking up the furniture and fixtures, and throwing food all over the place. I sentenced Hackett to twelve months in prison for the break and enter into his mother’s home." Find summaries of case.
R v McKay, 2006 BCPC 573 (CanLII), per Bennett J	BC	PC	A Joint Sub. 2 years	Guilty plea to B&E into dwelling; stolen jewellery and electronics; lengthy record with prior federal sentences Find summaries of case.
R v Vincent, 2006 BCCA 135 (CanLII), per Ryan JA	BC	CA	9 months after remand	age 31; plead guilty to break and entering into dwelling and obstruction; 10 prior adult convictions Find summaries of case.
R v Brideau and St-Onge, 2006 NBCA 94 (CanLII), per Richard JA	NB	CA	6 months CSO	break into house and assaulted resident due to prior conflict with resident Find summaries of case.
R v Kennedy, 2005 NLTD 28 (CanLII), per Seaborn J	NL	SC	1 year CSO	broke into window of apartment; stole $300 cash; youth record only Find summaries of case.
R v Lachance, 2005 QCCA 638 (CanLII), per Bich JA	QC	CA	12 months imprisonment	B&E and assault; rejection of CSO Find summaries of case.
R v Lynch, 2005 CarswellOnt 3499 (Ont. SCJ)(*no CanLII links)	ON	SC	2 years less a day; 2 years probation	convicted of B&E; Record was "abominable" with six prior break and enters
R v Micallef, 2005 ABCA 311 (CanLII), per Fraser CJ	AB	CA	2 years imprisonment	age 43; plead guilty to two counts of Break and Enter for taking electronics from two trailers; record was lengthy with 14 prior break and enters Find summaries of case.
R v Mudaliar, 2005 ABPC 333 (CanLII), per Malin J	AB	PC	15 months imprisonment	"the accused pleaded guilty to one count of breaking and entering a dwelling house and committing theft. He stole various electronic items of a value of around $2300. He said he committed the crime because he was indebted to a drug dealer. He was 31 years old. He had an extensive criminal record of 21 prior convictions, containing ten property offences, none of which were break and enters. Judge Malin reviewed the Alberta case law and found that it was clear that denunciation and deterrence were the most important of the sentencing objectives. He found that a sentence in the range of nine to 18 months jail was appropriate for a single, unsophisticated break and enter of an unoccupied dwelling house were theft was the indictable offence committed therein and the offender was a mature adult, with an extensive record, (but not including any break and enter offences), and the offence was motivated by a need for money. The judge sentenced the accused to 15 months in jail." (Quoting from R v Jones, 2017 ABPC 69 (CanLII)), at para 29 Find summaries of case.
R v Arsenault, 2004 BCCA 401 (CanLII), per Finch CJ	BC	CA	2 years less a day CSO	accused 50 years old, lengthy record; 2 break ins Find summaries of case.
R v Lawson, 2004 CanLII 8990 (ON CA), per curiam	ON	CA	3 years imprisonment	3 x B&Es; long prior record; joint recommendation Find summaries of case.
R v Mallory, 2004 NBCA 72 (CanLII), per Ryan JA	NB	CA	30 months imprisonment	recruited son and girlfriend's son to help break into residence of recently deceased lady. Stole jewellery. Some prior record. Find summaries of case.
R v Bomba, 2002 BCCA 17 (CanLII), per Hubbart JA	BC	CA	2 years less a day imprisonment	Find summaries of case.
R v Harvey, 2002 SKCA 20 (CanLII), per Jackson JA	SK	CA	1 year imprisonment 21 year old accused; 4 prior B&E; planned with friend to break into houses of friends who were away. Find summaries of case. || {{{5}}}
R v Power, 2002 CanLII 18133 (NL PC), per Gorman J	NL	PC		Find summaries of case.
R v Renouf, 2001 NFCA 56 (CanLII), per Wells CJ	NL	CA	16 to 36 months	4 breaks into commercial buildings--offender had significant record. "the offender entered pleas of guilty to four break and entries of commercial enterprises. The Court of Appeal increased the sentence imposed from one to 16 months from one of 16 months to 36 months. Mr. Renouf had a significant criminal record." Find summaries of case.
R v Wakeham, 2001 CanLII 37595 (NLSCTD), per O'Regan J	NL	SC	45 months imprisonment	"the Accused was sentenced for a period of 45 months for break and entry. Mr. Wakeham's offence involved what is commonly referred as a "safe attack" although that's not the case here. But the Court felt that deterrence and protection of the public for the primary principles to be applied in that case." Find summaries of case.
R v Bush, 2001 SKCA 15 (CanLII), per Lane JA	SK	CA	2 years imprisonment	38 year old with 49 prior convictions; 3 residential breaks in one month Find summaries of case.
R v Sayer, 2001 SKCA 73 (CanLII), per Jackson JA	SK	CA	2 years after 4 mo remand	39 B&E, 6 of them were residential the rest were garages Find summaries of case.
R v Adams, 1999 CanLII 9418 (NB QB), per Rideout J	NB	SC	2, 9 and 18 months CSO	Find summaries of case.
R v Jackson, 1999 CanLII 12227 (SK CA), per Vancise JA	SK	CA	6 mo CSO	Find summaries of case.
R v Colbourne, (1997), 148 Nfld. & P.E.I.R. 287 (P.C.)(*no CanLII links)	PEI	PC
R v Byers, 1996 CanLII 3717 (PEICA), per Carruthers CJ		CA	15 months imprisonment	Find summaries of case.
R v Arsenault, 1994 CanLII 8799 (PEICA), per curiam		CA	12 months imprisonment	19 year old with limited record, drug abuse, 12 B&E over one day Find summaries of case.
R v Kelly, (1994), 117 Nfld. & PEIR 256(*no CanLII links)			31 months imprisonment	4 breaks and 2 breaches--offender was 19 years old with a lengthy record
R v Desjarlais, , [1993] AJ No 891(*no CanLII links)	AB			"the Alberta Court of Appeal upheld a sentence of one year in jail for breaking into a dwelling house while the accused was on probation. He was intoxicated at the time of the offence. The Court noted that the offender wanted to better himself and turn his life around but could see no error in the sentence imposed by the trial judge." (Quoting from R v Jones, 2017 ABPC 69 (CanLII)), at para 28
R v Moyles, [1992] NJ No 254 (CA)(*no CanLII links)	NL	CA	18 months imprisonment	2 breaks into businesses--offender was 20 years old and had a prior record for break and enter
R v Manning; R v Paquette, , [1992] AJ No 259(*no CanLII links)	AB	CA		"the Alberta Court of Appeal imposed a sentence of two years less a day in jail on two youthful offenders who broke into a rural dwelling house and stole property valued at about $17,000. Manning, age 23, had eleven prior convictions and Paquette, age 20, had ten and at the time of the offence both of them were on some form of pre-release." (Quoting from R v Jones, 2017 ABPC 69 (CanLII)), at para 27
R v Powers, 1991 CanLII 6838 (NL CA), Nfld. & PEIR 1 (CA), per Gushue JA	NL	CA	2 years	2 offenders did 3 breaks (a club, business and church) --offenders had prior records--low value of property stolen--"higher end" sentences. "the Court of Appeal upheld a sentence of two years imprisonment imposed on two offenders for three break and entries (into a club, a business and a church). Both had previous convictions. The Court described the sentence as being at the higher end of the range for the offences committed. The break-ins were not in respect to a dwelling house and not a great deal of money was appropriated." Find summaries of case.
R v Keans, 1991 CanLII 2486 (NS CA), per Jones JA	NS	CA	5 years imprisonment	break into residence and six cottages Find summaries of case.
R v Hillier, [1991] NJ No 53 (CA)(*no CanLII links)	NL	CA	3 years imprisonment	2 breaks into a take-out--offender was 24 years old with a lengthy record
R v Merenick, 1991 ABCA 270 (CanLII), per Stratton J	AB	CA		"a 22 year old offender pleaded guilty to breaking into ten dwelling houses. He stated that he had acted out of desperation because he had no job and no prospects. He was very cooperative with the police and enabled them to solve a number of crimes. He had a related criminal record but had a good work history and a strong likelihood of rehabilitation. The Alberta Court of Appeal overturned a sentence of two years less a day and substituted a sentence of one year's jail and probation, concurrent, for each of ten counts of break and enter" (Quoting from R v Jones, 2017 ABPC 69 (CanLII)), at para 26 Find summaries of case.
R v Weaver, 1990 CanLII 2355 (NS CA), per Macdonald JA	NS	CA	12 months imprisonment	3 break and enters; commercial Find summaries of case.
R v Burry, [1990] NJ No 93 (CA)(*no CanLII links)	NL	CA	14 months imprisonment	break into inn and stole property worth $500--offender had prior record for arson--called sentence "high end", "the Court of Appeal upheld a period of 14 months imprisonment imposed upon the offender by the trial judge. The offender had committed a break and entry into an inn and stole $500 in goods. He had a prior conviction for arson. The Court of Appeal described the sentences at the high end of the range for this type of offence."
R v Tubrett, [1988] NJ No 337 (CA)(*no CanLII links)	NL	CA	30 months imprisonment	break into residence, stole money, defecated on chair--offender had extensive record
R v Piercey, 1988 CanLII 4434 (NL CA), [1987] NJ No 12 (CA), per Morgan JA	NL	CA	9 months imprisonment	broke into a cabin and stole liqour and steaks--offender had lengthy record--not considered serious Find summaries of case.
R v Zong, 1986 CanLII 6903 (NS CA), 72 NSR (2d) 432, per Clarke CJ	NS	CA		Find summaries of case.
R v Butler, [1985] NJ No 40 (CA)(*no CanLII links)	NL	CA	12 months imprisonment	overturned 90 day sentence--offender broke into residence and stole property and money of value of $25,000--offender was 39 years old with no record
R v White, [1985] NJ No 66 (CA)(*no CanLII links)	NL	CA	22 months imprisonment	2 breaks into residences, also convicted of escape and possession--offender was 18 years old with prior record--
R v Smith, [1984] NJ No 42 (CA)(*no CanLII links)	NL	CA	6 months imprisonment	also sentenced for theft (6 months consecutive) "Court of Appeal sentenced an accused to six months imprisonment for break and entry into a residence and six months concurrent for the offence of theft. In that case, the offender was 19 years of age and was described as having "a rather lengthy criminal record consisting of at least property related offences." The Court of Appeal varied the sentence imposed to consecutive periods of imprisonment. It would have been a total of 12 months imprisonment."
R v Newell and Poteri, 1983 CanLII 5097 (NS CA), 60 NSR (2d) 33 (NSCA), per Hart JA	NS	CA	Suspended Sentence	The offender broke into 5 uninhabited cottages. He was 20 years old with no prior record. Find summaries of case.
R v Hynes, , [1980] N.J. No. 38(*no CanLII links)	NL	CA
R v Palmer, 1976 CanLII 2503 (NS CA), 17 NSR (2d) 236, per MacKeigan JA	NS		Suspended Sentence, 12 months probation	The offender broke into 4 summer cottages. Offender had not prior record. Find summaries of case.