Failure to Comply

What is a breach?

A ‘failure to comply’ or ‘breach’ is one of the most commonly charged offences in Canada. A breach charge arises when an individual fails to comply with any Court order, whether that order is concerning release from pre-trial custody, probation, or even house arrest.

What actually constitutes a ‘breach’ of a Court order is case specific and depends on the conditions which have been imposed on an individual. Generally, the words in a Court order should be read with their ordinary plain meaning.

There are various sections of the Criminal Code (hereinafter the Code) which contain ‘failure to comply’ offences depending on the type of Court order which has been breached. Some examples of orders which individuals may be bound by, and offences which they may be charged with if breached include:

  • Recognisances (breaches charged under s. 145(3) of the Code)
  • Undertakings (breaches charged under s. 145(4) of the Code)
  • Bail Conditions (breaches charged under s. 145(5) of the Code)
  • Probation Orders (breaches charged under s. 733.1(1) of the Code)
  • Conditional Sentence Orders (breaches charged under s. 742.7(1) of the Code)

Court orders can be breached in two ways. An individual may breach through a positive action such as communicating with a person who they are prohibited from communicating with; or they may breach through a negative action such as failing to report to a probation officer at a specified time.

It is important that anyone who is bound by conditions understands those conditions, what would constitute a breach, and what your options are if you have been charged with a failure to comply. Breaches can make a defendant’s time in the criminal justice system much longer and can unfortunately result in a long-term cycle of incarceration. Our firm is here to help you prevent breaches before they happen and assist you if you are ever accused of breaching your Court order.

Defending breaches

Like every other offence in Canada, individuals are presumed innocent until they either plead guilty or are proven guilty beyond a reasonable doubt. To prove that an individual failed to comply with conditions of a Court order, three elements must be proven by the prosecution:

  1. The defendant was bound by conditions
  2. That the defendant breached those conditions
  3. That the defendant intended to breach those conditions

It is important that defendants understand any conditions which are imposed on them and raise issues with the Crown if there are conditions which they will be reasonably unable to comply with. As mentioned above, Court conditions should typically be understood with their plain and ordinary meaning. However, sometimes conditions can appear ambiguous. Take for example a condition to “remain away from places whose primary function is directed to the enjoyment of persons 16 years of age and under”. Interpreting what places are, and are not, “places whose primary function is directed to the enjoyment of individuals under 16” is a contextual analysis which can be made easier through the assistance of legal counsel. If you are ever concerned that your actions could place you in a position where you are breaching your conditions, it is always best to play it safe.
Another proactive measure which can be taken to avoid a breach is called a variation. Where a variance would be reasonable and appropriate, our legal team can assist in advocating for changes to your conditions to prevent a breach before it happens.

Although rare, there may be some cases where a defendant could rely on necessity as a defence to their failure to comply charges. Take for example the situation of a medical emergency occurring while under house arrest or while subject to a curfew. The availability of this type of defence is very fact specific and will need to be considered in the full context of the situation taking into account reasonable alternatives which could have been taken.

A more common situation is an ‘honest mistake’ breach. As detailed above, the Crown is required to prove that any breach of conditions was done intentionally. Where a breach is committed entirely accidentally, there may be a good faith accident defence to be made.

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No contact order violated by the complainant

It is common for defendants involved in domestic violence cases to be under conditions not to contact the complainant in the matter. This can be difficult as the complainant can sometimes be the defendant’s significant other.

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Penalty for breaches

Regardless of the type of Court order that is alleged to have been breached, the Court takes breaches of Court orders seriously.

If you are released on a Court order and you breach those terms, there is a real possibility that you will be held in custody and charged with additional offences. Failure to comply charges can result in jail time, even for a first offence.

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Taking the next step:

Lakin Afolabi LPC has over 10 years experience in defending individuals against breach charges. Allow us to help you develop a deeper understanding of the conditions you are bound by and the defences which may be available to you if you have been accused of breaching.
Our office takes a human approach to law, we understand that people may breach their conditions for many legitimate reasons. Take the next step and book a consultation with one of our lawyers today.

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