Breach of Undertaking, Recognizance, or Probation (Offence)

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Breach of Undertaking, Recognizance, or Probation
s. 145(3), (5.1) or 733.1 of the Crim. Code
Election / Plea
Crown Election varies
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction varies
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum fine / 6 or 18 months incarceration
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 2 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

The offences of breaching court orders such as undertakings or recognizance are found in Part IV of the Criminal Code relating to "Offences Against the Administration of Law and Justice". Offences relating to breaches of probation orders are found in Part XXIII of the Criminal Code relating to "Sentencing". Breaches of peace bonds are found in Part XXVII of the Criminal Code relating to "Summary Convictions".

It is an offence to violate supervisory orders that are imposed either pending disposition of a charge or after disposition. Undertaking and recognizances are supervisory orders limiting an accused's liberty while a charge is pending, probation is a form of supervisory order imposed as part of sentence.

Pleadings
Offences under s. 145(3) [Breach of Judicial Undertaking or Recognizance] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 145(5.1) [Breach of Police Undertaking] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Offences under s. 733.1 [Breach of Probation] are absolute jurisdiction offences under s. 553(a) and so does not have a defence election of court. It must be tried by a provincial court judge.

Offences under s. 811 [Breach of Peace Bond] are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release

Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 145(3), (5.1), 733.1 and 811 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 145(3) [Breach of Judicial Undertaking or Recognizance], (5.1) [Breach of Police Undertaking], 733.1 [Breach of Probation] and 811 [Breach of Peace Bond], the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on a attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).

There will be a reverse onus for charges under s. 145(2) to (5) "that is alleged to have been committed while he was at large after being released in respect of another offence pursuant to the provisions of [Part XVI regarding compelling appearance for an accused] or s. 679, 680 or 816 [regarding release pending appeal or review of appeal]".

A peace officer who charges a person under s. 145(3), (5.1), 733.1, or 811 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans
For all offences there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Designations

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Breach of Conditions imposed by Justice or Judge

145
...
Failure to comply with condition of undertaking or recognizance
(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3.


CCC


Breach of Conditions imposed by Peace Officer

145
...
Failure to comply with conditions of undertaking
(5.1) Every person who, without lawful excuse, the proof of which lies on the person, fails to comply with any condition of an undertaking entered into pursuant to subsection 499(2) or 503(2.1)

(a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.

...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3; 2008, c. 18, s. 3.


CCC


Breach of Probation

Failure to comply with probation order
733.1 (1) An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than four years; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months, or to a fine of not more than $5000, or to both.

Where accused may be tried and punished
(2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.
1995, c. 22, s. 6; 2015, c. 23, s. 18.


CCC

Breach of Peace Bond/Recognizance

Breach of recognizance
811 A person bound by a recognizance under any of sections 83.3 and 810 to 810.2 who commits a breach of the recognizance is guilty of

(a) an indictable offence and is liable to imprisonment for a term of not more than four years; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months.

R.S., 1985, c. C-46, s. 811; 1993, c. 45, s. 11; 1994, c. 44, s. 82; 1997, c. 17, s. 10, c. 23, ss. 20, 27; 2001, c. 41, s. 23; 2015, c. 20, s. 27, c. 23, s. 19, c. 29, s. 12.


CCC

Proof of the Offence

Proving breach of judicial undertaking or recognizance under s. 145(3) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that the Crown must prove that the accused was bound by an undertaking or recognizance;
  5. that the accused committed an act which was prohibited by the undertaking or recognizance or that the accused failed to perform an act required to be performed by that undertaking or recognizance; and
  6. the accused knowingly (or recklessly) and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.[1]
  1. R v Custance 2005 MBCA 23 (CanLII) at para 10

Proving breach of police undertaking under s. 145(5.1) should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. that the accused was subject to an undertaking to an officer in charge pursuant to s.499 (under an arrest warrant) or 503(2.1) at the time of the offence;
  5. that the accused committed an act which was prohibited by the undertaking or recognizance or that the accused failed to perform an act required to be performed by that undertaking;
  6. the accused knowingly (or recklessly) and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.

Proving breach of probation under s. 733.1 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit was previously convicted of an offence for which the sentence included a period of probation
  5. the culprit was bound by the probation order at the time
  6. that the accused committed an act which was prohibited by the probation order or that the accused failed to perform an act required to be performed by that probation order; and
  7. the culprit knowingly (or recklessly) and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.

Interpretation of the Offence

Mens Rea, Breach Probation
The Crown must prove that the accused intended to breach his probation conditions. This means the accused must have known that he was bound by the probation order as well as the terms of the order. The mens rea of the offence can be satisfied by an "objective recklessness".[1]

The use of the word "refusing" in a breach of probation order, requires the accused "know what [he was] not complying with" and "deliberately flout them".[2]

Previously, breaches required wilful intent. This was inferred from the facts.[3]

Lawful Excuse
Once the crown establishes a prima facie case, the accused is responsible to "establish a lawful excuse for not complying" with the conditions on a balance of probabilities.[4]

Failure to Pay Fines
If the breach is for the failure to pay restitution, the failure to make the payments in and of itself is prima facie evidence that the accused intended not to pay.[5]

Breach of s. 810 Order vs Breach of Undertaking/Recognizance
A breach of an 810 beach bond does not amount to an offence under s. 145(3).[6]

Kienapple
The kienapple principle does not apply to a single action that violates both a recognizance and a probation order.[7] A conviction for a substantive offence that results in a breach charge does not prohibit a conviction for the breach.[8]

  1. c.f. R v D.J.M., 2010 BCSC 448 (CanLII) - seems to suggest recklessness not enough
  2. R v Docherty, 1989 CanLII 45 (SCC), [1989] 2 SCR 941 at para 14
  3. R v Docherty, [1989] SCR 941, 1989 CanLII 45 (SCC)
  4. R v Flores-Rivas, 2008 BCSC 1595 (CanLII) at paras 15-16
    R v Ludlow 1999 BCCA 365 (CanLII), (1999), 136 CCC (3d) 460
  5. R v Sugg, 1986 CanLII 124 (NSCA)
  6. R c Simanek, [1993] 82 CCC (3d) 576 (CA Ont.) (*no CanLII links)
  7. R v Poker, 2009 NLCA 33 (CanLII)
    R v Furlong, 1993 CanLII 7747 (NL CA), [1993] N.J. No. 168
  8. R v Furlong

Proving the Existence and Duration of Order

See also: Public and Judicial Documents

The crown is obliged to prove the existence of the recognizance at the relevant time. It cannot be assumed.[1]

The proof of the existence of the recognizance on the date of issue does not create a presumption that the accused was bound on the date of the offence. The Crown must also prove that the order was in place on the day of the offence.[2]

In proving the existence of a probation order, an original certified copy of the order may be submitted as an exhibit without notice at the common law.[3] This is likewise the case in proving an order of disqualification from driving.[4]

The court may use its own records as evidence. Ambiguities in the records can be clarified by calling the court clerk to give clarifying evidence.[5]

Any court records examined by the court must be done so in the presence of counsel and counsel must be invited to make submissions on their interpretation.[6]

The probation order must be in effect at the time of the breach. Accordingly, a call from jail to a prohibited person is not a breach under the associated probation order since the order does not commence until release.[7]

  1. R v Han, 2008 ONCJ 688 (CanLII)
  2. R v Truong, 2008 BCSC 1151 (CanLII) at para 33
  3. R v Lebreux [1993] N.W.T.J. No. 97 (*no CanLII links)
  4. R v Tatomir, 1989 ABCA 233 (CanLII)
  5. R v West, 2009 BCSC 1164 (CanLII)
  6. R v Poole, 2014 BCSC 102 (CanLII),
  7. R v Fazekas, 2003 CanLII 48250 (ON CA)

Keep the Peace and be of Good Behaviour

The condition to "keep the peace and be of good behaviour" contemplates two different types of offences. The provision to "keep the peace" is separate from the condition to be of "good behaviour".[1]

Disorderly conduct that violates public peace will amount to a breach of the "peace".[2] This does not however include cursing or swearing at police.[3]

The term "be of good behaviour" means that the person must comply with federal, provincial, municipal statutes or regulatory provisions as well as court orders.[4]

There is some dispute over whether breaching "good behaviour" requires breach of law or regulation . There is a line of cases that says you must have a violation.[5] While others state that there in no such limitation.[6]

  1. R v SS, 1999 CanLII 18981 (NL CA) at para 6 per Green JA
  2. R v Badenoch, [1969] 1 CCC 78 (*no CanLII links)
    SS, supra
    R v Gosai [2002] O.J. No. 359 (S.C.J.)(*no CanLII links)
  3. R v Shea, 2010 NSPC 70 (CanLII)
  4. R v R(D), 1999 CanLII 13903 (NL C.A.)
    R v Grey (1993) 19 CR 4th 363 (Ont.) (*no CanLII links)
  5. R(D), supra
    Grey, supra
    R v Barker (1967), 3 C.R.N.S. 58 (Y.F. Mag. Ct.) (*no CanLII links)
  6. R v M.(S.A.M.) [1994] SJ No 537 (SKPC) (*no CanLII links)
    R v Johnson (1993), 90 Man. R. (2d) 43 (*no CanLII links)
    SS, supra

Forgetfulness

Forgetfulness has been successful as a defence to the reporting condition for probation.[1]

  1. R v Bremmer, 2006 ABPC 93 (CanLII)

Contact/Communicate/Associate

Smirking and extending a middle finger was found to amount to contact with a complainant.[1]

"Contact" has a broader meaning than "communicate" and "associate".[2]

"Contact" must be more than simply incidental or momentary physical proximity. There must be "an element of purposeful contact that is intrusive, disruptive or communicative".[3]

The term "communication" can take the ordinary dictionary meaning of the word and includes the transmission of information.[4] It does not need a "mutuality" between the recipient of the communication.[5]

Communication can include certain acts or gestures. [6]

An act that may have amounted to an attempt to communicate is not sufficient to breach a communication provision.[7]

Communication that is initiated by the party protected by the condition will still amount to an offence.[8]

Mens Rea
Since there must be intent when breaching a contact order, simply running into a person by accident will not be sufficient.[9] Nor will "mere carelessness or failure to take precautions that a reasonable person would take" be enough.[10]

The purpose of the communication has no bearing on the meaning of "communication" in the offence.[11]

  1. R v Dupuis, 2006 NSPC 66 (CanLII)
  2. R v CAH, 2010 ABPC 375 (CanLII), [2010] A.J. No. 1354
  3. R v Eyles, 2012 ONCJ 463 (CanLII) at 33
  4. R v Legere, 1995 CanLII 1551 (ON CA) ("communication... least connotes an imparting of information from one to another")
    see also Wiretaps for interpretation of "Communication"
  5. Legere, ibid. see also R v Davie (1980), 1980 CanLII 323 (BC CA), 54 CCC (2d) 216, 17 C.R. (3d) 72 (BCCA)
  6. Legere, ibid. ("Communicating can occur by acts or gestures as well as by words, as the trial judge correctly observed")
  7. Legere, ibid., (" the appellant's act may have been an attempt to initiate communication (which was unsuccessful) but it was not an act of communicating as that word is used in the judicial interim release order")
  8. R v Fitzgerald, 1990 CanLII 6481 (NL CA)
  9. R v Eyles, 2012 ONCJ 463 (CanLII) at para 32
  10. Legere, supra
  11. R v F(J) [2001] O.J. No. 2054

Possession of Weapons

An order that prohibits the possession of a firearm, including probation, recognizance or 109/110 Order, will apply whether or not the person is within Canada. They will be personally subject to the order no matter where they are. [1]

  1. R v Rattray, 2008 ONCA 74 (CanLII) - accused bought rifle while in Michigan, no evidence of possession within Canada

Curfew

A deminimus argument may be available for a breach of cerfew.[1]

  1. e.g. R v Tan, 2010 ABPC 163 (CanLII) -- acquittal for breach of curfew; de minimus principle

Possession or Use of Drugs

See also: Proof of Bodily Substance in Condition Breach Prosecution

Proceeding Ex Parte

Adjournment
803. (1) The summary conviction court may, in its discretion, before or during the trial, adjourn the trial to a time and place to be appointed and stated in the presence of the parties or their counsel or agents.
Non-appearance of defendant
(2) If a defendant who is tried alone or together with others does not appear at the time and place appointed for the trial after having been notified of that time and place, or does not appear for the resumption of a trial that has been adjourned in accordance with subsection (1), the summary conviction court

(a) may proceed ex parte to hear and determine the proceedings in the absence of that defendant as if they had appeared; or

...
Consent of Attorney General required
(3) If the summary conviction court proceeds in the manner described in paragraph (2)(a), no proceedings under section 145 arising out of the defendant’s failure to appear at the time and place appointed for the trial or for the resumption of the trial shall, without the consent of the Attorney General, be instituted or be proceeded with.
...
R.S., 1985, c. C-46, s. 803; 1991, c. 43, s. 9; 1994, c. 44, s. 79; 1997, c. 18, s.112; 2008, c. 18, s. 45.


CCC

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses

Testimonial Aids
Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt
Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence

Maximum Penalties
Offences under s. 145(3) for Breach of Judicial Undertaking or Recognizance are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine .

Offences under s. 145(5.1) for Breach of Police Undertaking are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is six months jail and/or a $5,000 fine .

Offences under s. 733.1 for Breach of Probation are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration . If prosecuted by summary conviction, the maximum penalty is $2,000 and/or 18 months.

Offences under s. 811 are hybrid. If prosecuted by indictment, the maximum penalty is 4 years incarceration. If prosecuted by summary conviction, the maximum penalty is 18 months jail.

Minimum Penalties
These offences have no mandatory minimum penalties.

Available Penalties

Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 145(3), 145(5.1), 733.1, 811 any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences
There are no statutory requirements that the sentences be consecutive.

However, breaches of court orders "will generally be made consecutive to the other related offences."[1]

  1. R v Hutchings, 2012 NLCA 2 (CanLII), [2012] N.J. No. 12, (NLCA) at para 86

Principles

Gravity of Offence
It is "critical" that persons obey their conditions that they are bound by.[1]

The "administration of justice and the public's confidence in the administration of justice depends on compliance with such orders". When they are breached emphasis should be on general and specific deterrence.[2] The judge should consider "general and specific deterrence and the need to protect the public from high-risk offenders ... were paramount." As well as proportionality, gravity and seriousness of the offence.[3]

Where a intimate partner is the subject of alleged violence the complainant has a right to be left alone by the accused.[4]

The purpose of a s. 810 recognizance is to protect the public by preventing future criminal activity.[5]

A breach of condition by absconding from the jurisdiction is considered "more serious than most, if not all, the other breaches".[6]

Sentencing Objectives
The primary purpose for sentencing on a breach of recognizance is the "protection of the public". The main objectives then are specific and general deterrence.[7]

Sentencing for breaches of recognizances should focus on managing the offender’s risk to the community.[8]

Some suggest that a breach of a court order should always involve a jail sentence.[9]

Multiple Offences
Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.[10]

Offender Circumstances
Breach should "be examined in light of the potential for the reasonably foreseeable consequences" of the conduct giving rise to the breach. This includes the offender's history. [11]

Procedure
Under s. 524(8), when a release order is violated the judge shall cancel the order and then show cause of why the accused should be released.[12]

  1. R v Bates, 2000 CanLII 5759 (ON CA) per Moldaver and Feldman JJA
  2. R v Seaward, 2003 CanLII 43484 (NL PC) at para 24 per Gorman PCJ
  3. R v Labbe, 2006 CanLII 36608 (ONCA) per "The Court"
  4. R v Denkers 1994 CanLII 2660 (ON CA), (1994), 69 O.A.C. 391, at p. 394
  5. R v Ballantyne, 2009 SKCA 27 (CanLII), 324 Sask R 71 at para 5
  6. R v Wilson, 2017 ONCA 229 (CanLII) at para 27
    Romania v Iusein, 2014 ONSC 623 (CanLII), per Speyer J, at para 26
  7. R v Zimmerman, 2011 ABCA 276 (CanLII)
    R v Wilson, 2014 BCPC 193 (CanLII), at para 45
  8. Zimmerman, supra
    Wilson, supra at para 45
  9. R v Murphy, 2011 NLCA 16 (CanLII), [2011] N.J. No. 43 (C.A.) at para 34 per Welsh JA
    R v Power, [2010] N.J. No. 331 (P.C.) ( "for breaching court orders almost always involve incarceration to denounce this conduct and send a signal to those who would be so inclined.")
  10. Murphy, supra
  11. R v Helary, 2007 NLCA 47 (CanLII), 268 Nfld & PEIR 267 at para 16 per Cameron JA
  12. see Breach of Release Conditions

Ranges

see also: Breach of Undertaking, Recognizance, or Probation (Sentencing Cases)

In Newfoundland, a breach of probation will typically be for 1 to 3 months, unless the election is by indictment where the sentence may be as high as 6 months.[1]

  1. R v Murphy, 2011 NLCA 16 (CanLII) ("a sentence in the range of one to three months imprisonment, or up to six months where the Crown proceeds by way of indictment, is imposed for the breach of a probation order.")

Ancillary Sentencing Orders

See also: Ancillary Orders

Offence-specific Orders

Order Conviction Description
DNA Orders s. 145(3) or (5.1)

General Sentencing Orders

Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A mandatory surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If offence occurs on or after October 23, 2013, the order is discretionary based on ability to pay and the minimum amounts are smaller (15%, $50, or $100).

General Forfeiture Orders

Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.

History

See also: List of Criminal Code Amendments

Section 733.1

On July 17, 2015, the Tougher Penalties for Child Predators Act (Bill C-26) came into force resulting in an increase of the maximum penalties for convictions under s. 733.1. On summary conviction, the maximum penalties increased from 18 months and/or $2,000 to 18 months and/or $5,000. On indictable election, the maximum penalties increased from 2 years to 4 years.

Prior to 2015, the section read:

Failure to comply with probation order
733.1 (1) An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding eighteen months, or to a fine not exceeding two thousand dollars, or both.

Where accused may be tried and punished
(2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.
1995, c. 22, s. 6.


CCC


Section 145

On 2008, c. 18, Bill C-13 came into force, amending s. 145(3). Previous to the amendment s. 145(3) read:

145.
...
Failure to comply with condition of undertaking or recognizance
(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance directed by a justice or judge, and every person who is bound to comply with a direction ordered under subsection 515(12) or 522(2.1), and who fails, without lawful excuse, the proof of which lies on that person, to comply with that condition or direction, is guilty of

(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

...
R.S., 1985, c. C-46, s. 145; R.S., 1985, c. 27 (1st Supp.), s. 20; 1992, c. 47, s. 68; 1994, c. 44, s. 8; 1996, c. 7, s. 38; 1997, c. 18, s. 3.


CCC

The most notable difference is that the 2008 amendment includes breaches of release under s. 516(2) and it also removes reference to "directed by a justice or judge".

See Also

References