Breach of Undertaking, Release Order or Probation Order (Offence)
|Breach of Undertaking, Recognizance, or Probation|
|s. 145(4), (5) or 733.1 of the Crim. Code|
|Election / Plea|
summary proceedings must initiate within 12 months of the offence (786(2))
|Types of Release||Release by Officer, Officer-in-charge, or Judge|
|Avail. Disp.||Discharge (730)|
Conditional Sentence (742.1)
|Maximum||fine / 6 or 18 months incarceration|
|Avail. Disp.||same as summary|
|Maximum||2 years incarceration|
- 1 Overview
- 2 Offence Wording
- 3 Proof of the Offence
- 4 Interpretation of the Offence
- 5 Participation of Third Parties
- 6 Sentencing Principles and Ranges
- 7 Ancillary Sentencing Orders
- 8 History
- 9 See Also
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.
|Crown Election||Defence Election
|145(4) [failure to comply with undertaking]||Hybrid Offence(s)||(under 14 years max)|
|145(5) [failure to comply with release order]||Hybrid Offence(s)||(under 14 years max)|
|733.1 [breach of probation]||Hybrid Offence(s)||(under 14 years max)|
|811 [breach of peace bond]||Hybrid Offence(s)||(under 14 years max)|
by Peace Officer
by Judge or Justice
s. 508(1), 512(1), or 788
s. 498, 499, and 501
a Judge or Justice
on a release order
s. 515 to 519
|Direct to Attend |
for Fingerprints, etc.
Identification of Criminals Act
s. 2 ID Crim. Act
|s. 145(3) [failure to comply with undertaking],
145(5) [failure to comply with release order],
733.1 [breach of probation] and
811 [breach of peace bond]
When charged under s. 145(4) [failure to comply with undertaking], s. 145(5) [failure to comply with release order], s. 733.1 [breach of probation] and 811 [breach of peace bond] , the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
- Reverse Onus Bail
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]".
- Fingeprints and Photos
A peace officer who charges a person under s. 145(4) [failure to comply with undertaking], (5) [failure to comply with release order], 733.1 [breach of probation], or 811 [breach of peace bond] 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 criminal or regulatory prosecutions, 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.
See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.
Failure to comply with Undertaking
Failure to comply with Undertaking
Breach of Probation
Breach of Peace Bond/Recognizance
Draft Form of Charges
|"THAT [accused full name] stands charged that, between the <DATE> day of <MONTH>, <YEAR> and <DATE> day of <MONTH>, <YEAR>***, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"THAT [accused full name] stands charged that, on or about the <DATE> day of <MONTH>, <YEAR>, at or near <COMMUNITY/TOWN/CITY>, <PROVINCE>, he [or she]..." OR|
|"AND FURTHER at the same time and place aforesaid, he [or she]..."|
|Code Section||Subject of Offence||Draft Wording|
|"..., contrary to section XX of the Criminal Code.|
Proof of the Offence
Proving failure to comply with release order under s. 145(5) should include:
Proving breach of probation under s. 733.1 should include:
Interpretation of the Offence
The condition to report to the door for compliance checks creates a duty on the accused. Failure of that duty is an offence.
- Mens rea, Breach of Recognizance
The offence's mens rea is on an objective fault standard.
- 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".
The use of the word "refusing" in a breach of a probation order, requires the accused "know what [he was] not complying with" and "deliberately flout them".
Previously, breaches required wilful intent. This was inferred from the facts.
- 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.
- 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.
- 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).
The kienapple principle does not apply to a single action that violates both a recognizance and a probation order. A conviction for a substantive offence that results in a breach charge does not prohibit a conviction for the breach.
- R v Zora, 2019 BCCA 9 (CanLII) (5:0), per Stromberg-Stein JA (Fenlon JA concurring in results only)
- Zora, ibid., at para 2 ("the duty-based nature of s. 145(3), combined with the risk-based nature of bail provisions, support Parliament’s intention for the application of an objective fault standard. ")
- cf. R v DJM, 2010 BCSC 448 (CanLII), per Borrows J (seems to suggest recklessness not enough)
- Docherty, ibid., at para 14
- Docherty, ibid.
R v Flores-Rivas, 2008 BCSC 1595 (CanLII), per Bennett J, at paras 15 to 16
R v Ludlow, 1999 BCCA 365 (CanLII), (1999), 136 CCC (3d) 460, per Hall JA (2:1)
- R v Sugg, 1986 CanLII 124 (NSCA), per Macdonald JA (3:0)
- R c Simanek,  82 CCC (3d) 576 (CA Ont.), 1993 CanLII 14660 (ON CA), per curiam
R v Poker, 2009 NLCA 33 (CanLII), per Rowe JA
R v Furlong, 1993 CanLII 7747 (NL CA),  N.J. No. 168, per Marshall JA
- Furlong, ibid.
Proving the Existence and Duration of Order
The crown is obliged to prove the existence of the recognizance at the relevant time. It cannot be assumed.
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.
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. This is likewise the case in proving an order of disqualification from driving.
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.
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.
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.
- R v Han, 2008 ONCJ 688 (CanLII), per Wakefield J
R v Truong, 2008 BCSC 1151 (CanLII), per Smart J, at para 33
- R v Lebreux,  N.W.T.J. No. 97 (*no CanLII links)
- R v Tatomir, 1989 ABCA 233 (CanLII), per Heatherington JA
- R v West, 2009 BCSC 1164 (CanLII), per N Brown J
- R v Poole, 2014 BCSC 102 (CanLII), per Butler J
- R v Fazekas, 2003 CanLII 48250 (ON CA), per curiam
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".
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.
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. While others state that there in no such limitation.
- R v SS, 1999 CanLII 18981 (NL CA), per Green JA, at para 6
R v Badenoch,  1 CCC 78, 1968 CanLII 815 (BC CA), per Tysoe JA
R v Gosai  OJ No 359 (S.C.J.)(*no CanLII links)
- R v Shea, 2010 NSPC 70 (CanLII), per Derrick J
R v DR, 1999 CanLII 13903 (NL C.A.), per Green JA
R v Grey (1993) 19 CR 4th 363 (Ont.) (*no CanLII links)
R v Barker (1967), 3 CRNS 58 (Y.F. Mag. Ct.) (*no CanLII links)
R v M(SAM)  SJ No 537 (SKPC) (*no CanLII links)
R v Johnson (1993), 90 Man. R. (2d) 43 (*no CanLII links)
Forgetfulness has been successful as a defence to the reporting condition for probation.
"Contact" has a broader meaning than "communicate" and "associate".
- Non-Verbal Contact
Smirking and extending a middle finger was found to amount to contact with a complainant.
- Minimal Contact
"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".
The term "communication" can take the ordinary dictionary meaning of the word and includes the transmission of information. It does not need a "mutuality" between the recipient of the communication.
Communication can include certain acts or gestures. 
- Failed Attempt to Communicate
An act that may have amounted to an attempt to communicate is not sufficient to breach a communication provision.
- Irrelevant Considerations
Communication that is initiated by the party protected by the condition will still amount to an offence.
The purpose of the communication has no bearing on the meaning of "communication" in the offence.
- Mens Rea
Since there must be intent when breaching a contact order, simply running into a person by accident will not be sufficient. Nor will "mere carelessness or failure to take precautions that a reasonable person would take" be enough.
- R v CAH, 2010 ABPC 375 (CanLII),  AJ No 1354, per Redman J
- R v Dupuis, 2006 NSPC 66 (CanLII), per Crawford J
R v Eyles, 2012 ONCJ 463 (CanLII), per Brophy J at 33
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"
- Legere, ibid. see also R v Davie (1980), 1980 CanLII 323 (BC CA), 54 CCC (2d) 216, 17 C.R. (3d) 72 (BCCA), per Hutcheon JA
- Legere, ibid. ("Communicating can occur by acts or gestures as well as by words, as the trial judge correctly observed")
- 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")
- R v Fitzgerald, 1990 CanLII 6481 (NL CA), per Marshall JA
- R v F(J),  OJ No 2054(*no CanLII links)
R v Eyles, 2012 ONCJ 463 (CanLII), per Brophy J, at para 32
- Legere, supra
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. 
A de minimus argument may be available for a breach of cerfew.
Possession or Use of Drugs
Proceeding Ex Parte
- Lawful Excuse Under the Contravensions Act
Participation of Third Parties
- 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
- Maximum Penalties
Offences under s. 145(4) [failure to comply with undertaking] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .
Offences under s. 145(5) [failure to comply with release order] are hybrid. If prosecuted by indictment, the maximum penalty is 2 years incarceration. If prosecuted by summary conviction, the maximum penalty is two years less a day jail and/or a $5,000 fine (from Sept 19, 2019) .
Offences under s. 733.1 [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 two years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
Offences under s. 811 [breach of peace bond] are hybrid. If prosecuted by indictment, the maximum penalty is '4 years incarceration'. If prosecuted by summary conviction, the maximum penalty is 18 months incarceration.
- Minimum Penalties
These offences have no mandatory minimum penalties.
- Available Penalties
s. 718.3, 787
|s. 145(4) [failure to comply with undertaking],
s. 145(5) [failure to comply with release order],
s. 733.1 [breach of probation], and
s. 811 [breach of peace bond]
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."
- Gravity of Offence
It is "critical" that persons obey their conditions that they are bound by.
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. 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.
Where an intimate partner is the subject of alleged violence the complainant has a right to be left alone by the accused.
The purpose of a s. 810 recognizance is to protect the public by preventing future criminal activity.
A breach of condition by absconding from the jurisdiction is considered "more serious than most, if not all, the other breaches".
- 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.
Sentencing for breaches of recognizances should focus on managing the offender’s risk to the community.
Some suggest that a breach of a court order should always involve a jail sentence.
- Multiple Offences
Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.
- Offender Circumstances
A 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. 
- R v Bates, 2000 CanLII 5759 (ON CA), per Moldaver and Feldman JJA
- R v Seaward, 2003 CanLII 43484 (NL PC), per Gorman J, at para 24
R v Labbe, 2006 CanLII 36608 (ONCA), per curiam
- R v Denkers, 1994 CanLII 2660 (ON CA), (1994), 69 O.A.C. 391, per curiam, at p. 394
- R v Ballantyne, 2009 SKCA 27 (CanLII), 324 Sask R 71, per Lane JA, at para 5
R v Wilson, 2017 ONCA 229 (CanLII), per Epstein JA, at para 27
Romania v Iusein, 2014 ONSC 623 (CanLII), per Speyer J, at para 26
R v Zimmerman, 2011 ABCA 276 (CanLII), per curiam
R v Wilson, 2014 BCPC 193 (CanLII), per Brecknell J, at para 45
Wilson, supra, at para 45
R v Murphy, 2011 NLCA 16 (CanLII),  N.J. No. 43 (C.A.), per Welsh JA, at para 34
R v Power,  N.J. No. 331 (P.C.), 2010 CanLII 62214 (NL PC), per Pike J ( "for breaching court orders almost always involve incarceration to denounce this conduct and send a signal to those who would be so inclined.")
- Murphy, supra
- R v Helary, 2007 NLCA 47 (CanLII), 268 Nfld & PEIR 267, per Cameron JA, at para 16
- see Breach of Release Conditions
In Nova Scotia, a repeat offender should expect to receive 1 to 3 months incarceration for a subsequent breach of s 145 on conditional release.
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.
Ancillary Sentencing Orders
- Offence-specific Orders
|DNA Orders||s. 145(4) or (5)||
- General Sentencing Orders
|Non-communication order while offender in custody (s. 743.21)||any||The judge has the 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 discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).|
- General Forfeiture Orders
|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.|
On September 19, 2019, Bill C-75 replaced s. 733.1(1). It changed the maximum penalty for summary election from 18 months to 2 years less a day.
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:
On 2008, c. 18, Bill C-13 came into force, amending s. 145(3). Previous to the amendment s. 145(3) read:
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".