The two most common type of “breach” charges seen in court are fail to comply with a recognizance and breach of probation.  They involve one disregarding a court order in the form of a bail or probation order.  Examples include having contact with a person one has been ordered to stay away from or being out after a court ordered curfew.

Courts rightfully treat breaches of their orders very seriously.  Without laws governing breaches then court orders would essentially have no teeth.

An appropriate sentence after being found guilty of breaching a court order is a difficult question, mainly because the range is so large.    In many courthouses a conditional discharge is often a foregone conclusion for a first breach – I have even seen some Judges regularly hand out absolute discharges.  On the other hand, I have heard of Judges who feel that jail time, often as much as thirty days for a first-timer, is the only appropriate disposition regardless of the facts behind the breach.

One main factor to consider is the seriousness of the breach.  Obviously a breach of a no-contact order would be taken much more seriously then someone who breached a curfew order by a few minutes as they were out getting groceries.

One interesting question is how to treat someone who has been charged with breaching a recognizance of bail only to have the underlying charges withdrawn.  Arguably in such a case they should have never been on bail to begin with.  However, I’m not sure that argument necessarily excuses the breach of a court order – whether or not they should have been on the order the fact is they were, and should not have breached it.  On the equities, however, it may be appropriate to offer some type of diversion program to those in such a circumstance.

It is a common misconception that a breach charge is an open and shut case for the Crown.  There are various technical elements that a Crown must prove for a finding of guilt to be made.

This blog post was written by Toronto Criminal Lawyer Adam Goodman. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.