Defending Robbery, Break and Enter, Mischief and Arson Charges

Robbery, break and enter, mischief and arson are property offences, but the law treats them very differently from an ordinary theft. Robbery and breaking into a home carry a maximum of life in prison. This page explains each charge, the presumptions the Criminal Code applies, and the issues that arise in defending them. A criminal defence lawyer at Law Wise, based in Mississauga and serving the entire GTA and Ontario, can help you respond to a robbery, break and enter, mischief or arson charge.

Robbery

Robbery is theft combined with violence or the threat of it. Under section 343 of the Criminal Code a person commits robbery who:

• steals, and uses violence or threats of violence to a person or property in order to take the thing or to overcome resistance;
• steals from a person and, at the time or immediately before or after, wounds, beats, strikes or uses personal violence against that person;
• assaults a person with intent to steal from them; or
• steals from a person while armed with an offensive weapon or an imitation of one.

Robbery is an indictable offence with a maximum of life in prison (s 344). Minimum sentences of five and seven years apply where a restricted or prohibited firearm is used, or where any firearm is used in connection with a criminal organization. The line between theft and robbery can be narrow. A shoplifting incident becomes a robbery allegation if force is used against a security guard to get away, and a threat implied by words or gestures can be enough.

Break and enter

Section 348 covers breaking and entering a place with intent to commit an indictable offence there, breaking and entering and committing an indictable offence there, and breaking out after doing either. The words have wide legal meanings. To “break” includes opening anything used to close or cover an opening, such as an unlocked door or window (s 321). A person “enters” as soon as any part of their body, or of an instrument they are using, is inside (s 350). A person is also treated as having broken and entered if they got in by a threat or a trick, or entered without lawful justification through an opening (s 350).

The Code adds a presumption. Evidence that a person 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 (s 348(2)). In practice this means the defence must be able to point to some evidence of another explanation, such as intoxication and confusion about the address, a belief in a right to be there, or an emergency.

A related offence, being unlawfully in a dwelling-house (s 349), applies where a person enters or is in a home without lawful excuse and with intent to commit an indictable offence. It has a similar presumption.

Why a home is treated differently

Parliament and the courts treat an offence in a home as especially serious because of the effect on the people who live there. Breaking into a dwelling-house carries a maximum of life, compared with ten years for other places. On sentencing for robbery or break and enter in relation to a home, the court must treat it as an aggravating circumstance that the home was occupied, that the offender knew or was reckless about that, and that violence or threats were used (s 348.1). The bail rules reflect the same concern. A person charged with breaking into a dwelling-house must show why they should be released (s 515(6)(a)(xiii)), and the court must consider conditions such as staying away from named places, not possessing break-in tools and a curfew (s 515(4.4)). Preparing a release plan before the hearing is therefore important. See bail hearings.

Mischief

Mischief is the offence most often laid for property damage. Under section 430, a person commits mischief by wilfully destroying or damaging property, making it dangerous, useless or inoperative, or obstructing or interfering with its lawful use or with a person’s lawful use of it. There is a parallel offence for computer data. Mischief charges often arise from arguments at home, such as a broken phone or a damaged door, from disputes between neighbours, from graffiti, and from protests.

• Shared property. Having a part interest in the property is not a defence if you caused the damage (s 429(3)). A person can be charged for breaking something they own jointly with a partner.
• Colour of right. A person who acted with legal justification or excuse, or with an honest belief in a legal right, is not guilty (s 429(2)).
• Wilfully. The damage must be intended, or the person must have known it would probably result and been reckless about it (s 429(1)). An accident is not mischief.
• Hate-motivated mischief. Mischief to a place of worship, a school or similar property that is motivated by bias, prejudice or hate carries up to 10 years (s 430(4.1)).

Issues a defence lawyer looks at

• Identity. Many of these cases depend on video, fingerprints, DNA or a witness’s identification of a stranger. Each has known weaknesses that can be tested.
• The level of the charge. Whether the evidence shows violence or a threat (robbery or theft), a break and entry (or trespass), a dwelling (or another place).
• Intent. Whether there is evidence that answers the statutory presumption.
• Party liability. Whether a person who was present, drove a car or kept watch knew what the others intended.
• Statements and searches. Whether the police respected the right to silence, the right to counsel and the rules on searching homes, cars and phones.

First steps after a charge

1. Use your right to silenceDo not explain where you were or who you were with until you have spoken with a lawyer.
2. Do not contact co-accused or witnessesRelease conditions usually forbid it, and contact can be misread.
3. Preserve what helps youPhone location history, receipts, transit records and messages can confirm where you were.
4. Prepare for bailFor robbery and home break-in charges, family should be ready to speak with the lawyer about a release plan and sureties.

How Law Wise helps

• Preparing for and appearing at the bail hearing.
• Reviewing identification, video and forensic evidence.
• Assessing whether the evidence supports the charge laid or only a lesser one.
• Advising on restitution and resolution for mischief and other lower-level property charges.
• Defending the charge at trial.

Your file is handled by a Law Wise lawyer licensed by the Law Society of Ontario. Service is available in English, Urdu, Punjabi and Hindi, and, if you retain the firm, fees are explained and confirmed in writing before work starts.

Common questions

This page is general legal information for Ontario, current as of 11 October 2026. It is not legal advice and does not create a lawyer-client relationship. For advice about your situation, please speak with a lawyer.