This is part one of a two part blog entry where I will be talking about breaches, or specifically the criminal charge of failure to comply with recognizance or undertaking (s. 145 of the Criminal Code) and failure to comply with probation (s. 733.1 of the Criminal Code). Other types of breaches, such as a breach of a conditional sentence order, are beyond the schope of these blogs.
When an individual is released after arrest or placed on probation the court will impose conditions on them. The actus reus of a breach involves non-compliance with one or more of these conditions. Release conditions may include non-contact with the complainant or any other parties the court deems appropriate (contact includes any contact including electronic contract such as text or Facebook messages), a boundary restriction, a curfew or house arrest, a requirement to seek counseling, etc. A probation order may contain conditions similar to a release order in addition to two statutory conditions to keep the peace and be of good behaviour (this condition may also be present on a release order although its appropriateness is a matter for debate) and to report to the court when required to do so.
The seriousness of a breach allegation, like any criminal offence, depends on the circumstances surrounding its commission. For example, a court may view a breach of a non-contact order much more seriously than a curfew breach (of course this would depend on the nature of the curfew breach) as such a breach could suggest a threat to the safety of the complainant.
Most breach allegations would not normally be criminal offences but-for the court order. The main exception to this is the term to keep the peace and be of good behaviour. Generally speaking a charge for breaching this term will be laid if an individual is arrested for a new criminal offence (although I suppose an argument could be made that one could not have committed an actual criminal offence but still not be keeping the peace and being of good behaviour; for example they may have contravened another Act or simply be behaving inappropriately but still not committing a criminal act) as the new criminal behaviour would put them in contravention of the condition. Another example is where there is a term to not be in possession of any illegal drugs and the individual is found in possession of an illegal drug and is subsequently charged with a breach and an offence under the Controlled Drugs and Substances Act.
Courts take breaches of their orders very seriously. This makes sense as court orders need to have an element of enforceability to them; if breaches weren’t criminal offences then there would arguably be little reason to follow the terms of a court order. Having even one breach on one’s criminal record may also make it difficult for them to be granted bail in the future as they now have a history of non-compliance with court orders. It is for this reason that individuals charged with a breach should be reluctant to plead guilty to the charge. These charges can often be hard to prove and, in many cases, the potential consequences of being successful at trial may not differ greatly from pleading guilty.
Part 2 of this discussion will focus on what the Crown needs to prove for an individual to be found guilty of a breach.
This blog post was written by lawyer Adam Goodman. Adam is a criminal lawyer in Toronto who blogs regularly about legal subjects. Adam can be reached at 416-477-6793 or by email at adam@aglaw.ca.
