Theft, Break & Enter, Robbery
Almost every one of these cases rests on somebody saying “that’s him”. Identification is the least reliable evidence the criminal law admits, and it is where these prosecutions come apart.
What this charge involves
Theft, break and enter and robbery cover an enormous range, from a shoplifting allegation to an armed robbery carrying a life maximum. What they have in common is how they are proved: an eyewitness, a grainy still from a camera, a description broadcast over the radio, and a person stopped nearby who fits some of it.
The Criminal Code sets the outer limits. Theft is punished under section 334: over $5,000 it carries up to 10 years on indictment, and at $5,000 or less up to 2 years, either of them capable of proceeding summarily. Break and enter under section 348 is more severe than people expect. In relation to a dwelling-house the maximum is life; in relation to anywhere else it is 10 years or a summary conviction.
Robbery is theft with violence, and section 343 defines it four separate ways. Section 344 carries a maximum of life in every case, with a minimum of 5 years where a restricted or prohibited firearm was used, or where any firearm was used for a criminal organization.
Charges within this area
- Theft over $5,000
- Theft under $5,000
- Break and enter
- Robbery
- Possession of property obtained by crime
- Return of seized property
How these cases get fought
The parts of the file that decide the outcome.
The identification is usually the whole case.
Ask what the witness actually saw, for how long, in what light, from what distance, through what, and how long afterwards they were asked. Then ask what they were shown, and in what order, and what was said to them while they looked.
In one of our matters a client was alleged to have committed a series of street robberies at gunpoint across the city. Every complainant had seen the robber and the firearm close up. Under cross-examination, no two of them described the same person or the same gun: the suspect was variously Black and white, blue-eyed and dark-eyed, holding a silver pistol and a black one. He was acquitted on all charges and counts.
That is not a trick. It is what happens when identification evidence is tested instead of accepted.
Break and enter reverses the burden on intent.
Section 348(2) is the provision most people have never heard of and most need to know about. Proof that a person broke and entered a place is, in the absence of evidence to the contrary, proof that they did so intending to commit an indictable offence inside.
So the Crown does not have to prove what you meant to do once you were in. It has to prove you broke and entered, and the intent is presumed from there. That makes the entry itself, and whether it was lawful, the ground worth fighting on.
What was in the car, and whether anyone could look.
Robbery and break and enter cases arrive with property: phones, cash, tools, sometimes a weapon. How that property was found decides most of these prosecutions.
In another of our matters, an officer stopped a suspicious vehicle near a series of cell phone store robberies and found a trunk holding phones, cash, tools and a handgun. Police then went back for a warrant, and for the registered owner’s consent to search again. We moved to quash the warrant and exclude everything seized. The motion succeeded, cross-examination established that the eyewitness identifications could not be relied on, and the jury returned verdicts of not guilty.
Getting the property back.
If police have seized a vehicle, cash or equipment, that is a separate application on its own timeline, and it does not wait politely for the criminal charge to finish. Ask about it at the first meeting rather than at the end.
Related case results
Matters of this kind and how they were resolved. Identifying details have been changed or withheld, and past results don’t predict the outcome of any other case.
- Acquitted
Robbery · Break and Enter
- Acquitted on all counts
Robbery · Multiple Counts
If police are questioning you
What to say
“I want to speak to my lawyer. I have nothing to say to you.”
Say it, then stop. Nobody can make you explain yourself, and an explanation can’t help you: the rules of evidence will not let your own statement be used in your favour at trial. It can only be used against you.
Questions about theft, break & enter, robbery charges
It was under $100. Is that still criminal?
Yes. Theft at $5,000 or less is still an offence under section 334, and a conviction still produces a criminal record. The value affects the maximum sentence and the likely resolution, not whether it is a crime.
Nothing was taken. Can it still be break and enter?
Yes. Section 348 catches breaking and entering with intent to commit an indictable offence, whether or not anything was taken, and the presumption in subsection (2) means that intent does not have to be proved separately.
It was a fake gun. Does that matter?
It matters to the mandatory minimum and not to the offence. Section 343(d) expressly covers stealing while armed with an offensive weapon or an imitation of one.
The store has me on video. Is there anything to argue?
Frequently, yes. Video shows an act; it rarely shows identity as clearly as the Crown suggests, and continuity, timing and what the camera could not see are all live. Nothing sensible can be said about it until we have watched the whole thing.
This page is general information about Canadian criminal law, not legal advice about your situation. The offences described are defined in the Criminal Code of Canada, and the rights referred to are in the Canadian Charter of Rights and Freedoms. If you cannot afford counsel, Legal Aid Ontario may be able to help.
Written and reviewed by Rita Levin, criminal defence lawyer, called to the Ontario bar on 29 May 1998. Law Society of Ontario licence no. 41157R. Last reviewed .
Other charges we defend
Drug Offences
Possession, trafficking, importation and production, including fentanyl, cocaine and methamphetamine.
Sexual Offences
Sexual assault, sexual interference, invitation to sexual touching, sexual exploitation.
Homicide
Murder, manslaughter, attempted murder, criminal negligence causing death.
Firearms, Guns & Gangs
Firearms offences, imitation firearms, improper storage, and criminal organization prosecutions.
Fraud & Financial Crime
Fraud over and under $5,000, employee and corporate fraud, forensic accounting cases.
Assault & Domestic
Assault, assault causing bodily harm, aggravated assault, and domestic matters.
Impaired Driving
Impaired operation, over 80, refusing the demand, and impaired causing bodily harm or death.
Internet Offences
Child sexual abuse material, luring, voyeurism, and the non-consensual sharing of intimate images.
Talk it through with a lawyer
The first conversation costs nothing and commits you to nothing. We will give you an honest read on where you stand, whether you retain us or not.
We are a private practice and our fees reflect the work involved. A serious matter is prepared over months, and we keep our numbers low so each file gets the hours it needs. We will tell you what your case is likely to cost on the first call, before you commit to anything. And if the honest answer is that duty counsel, Legal Aid or another firm would serve you better, we will tell you that instead.