Breach of Undertaking, Release Order or Probation Order (Offence)

This page was last substantively updated or reviewed August 2021. (Rev. # 94623)

• < Criminal Law/Sentencing
• < Offences

Breach of Undertaking, Recognizance, or Probation
s. 145(4), (5), 733.1, 811 of the Crim. Code
Election / Plea
Crown Election	varies summary proceedings must initiate within 12 months of the offence (786(2))
Jurisdiction	varies
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

Offence Section	Offence Type	Crown Election	Defence Election s. 536(2)	Preliminary Inquiry
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)

Offences under s. 145(4) [failure to comply with 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. 145(5) [failure to comply with release order] 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)	Appearance Notice by Peace Officer s. 497	Summons by Judge or Justice s. 508(1), 512(1), or 788	Release by Peace Officer on Undertaking s. 498, 499, and 501	Release By 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.

Renversement du fardeau de la preuve

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 weapon, being 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)).

And, regardless of Crown election, if the offence alleged was one:

• where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
• where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
• where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));

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]".

Fingerprints 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.

Offence Designations

Offence(s)	Wiretap Eligible s. 183	Dangerous Offender Designated Offence s. 752	Serious Personal Injury Offence s. 752	AG Consent Required	Serious Criminality Offence s. 36 IRPA
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]

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

Offence Wording

Failure to comply with Undertaking

145
[omitted (1), (2)and (3)]

Failure to comply with undertaking

(4) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or an offence punishable on summary conviction who,

(a) is at large on an undertaking and who fails, without lawful excuse, to comply with a condition of that undertaking; or

(b) is at large on an undertaking that has been confirmed by a justice under section 508 [justice to hear informant and witnesses] and who fails, without lawful excuse, to appear at the time and place stated in the undertaking for the purposes of the Identification of Criminals Act or to attend court in accordance with the undertaking.

[omitted (5), (5.1), (6), (7), (8), (9), (10) and (11)]

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; 2018, c. 29, s. 9; 2019, c. 25, s. 47.

– CCC (CanLII), (DOJ)

---

Failure to comply with Undertaking

145
[omitted (1), (2), (3) and (4)]

Failure to comply with order

(5) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years, or is guilty of an offence punishable on summary conviction, who

(a) is at large on a release order and who fails, without lawful excuse, to comply with a condition of that release order other than the condition to attend court; or

(b) is bound to comply with an order under subsection 515(12) [order re no communication on detention], 516(2) [Detention pending bail hearing] or 522(2.1) [Order re no communication — s. 469 offences] and who fails, without lawful excuse, to comply with that order.

[omitted (5.1), (6), (7), (8), (9), (10) and (11)]
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; 2018, c. 29, s. 9; 2019, c. 25, s. 47.

– CCC (CanLII), (DOJ)

---

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.

Where accused may be tried and punished

(2) An accused who is charged with an offence under subsection (1) [Failure to comply with probation order] 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; 2019, c. 25, s. 298.

– CCC (CanLII), (DOJ)

---

Breach of Peace Bond/Recognizance

Breach of recognizance

811 A person bound by a recognizance under any of sections 83.3 [terrorism recognizance] and 810 to 810.2 [peace bonds] 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.

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; 2019, c. 25, s. 322.

– CCC (CanLII), (DOJ)

---

Draft Form of Charges

		Pre-ambles
		"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
145(4)	failing to comply with undertaking - pre justice confirmation	"..., being at large on his undertaking given to a peace officer and being bound to comply with that undertaking, did fail without lawful excuse to comply with a condition of that undertaking, to wit: [particulars], contrary to section 145(4) of the Criminal Code."
145(4)	failing to comply with undertaking - post justice confirmation	"..., being at large on his undertaking given to a peace officer that has been confirmed by a justice under s. 508 of the Criminal Code, did fail without lawful excuse to comply with a condition of that undertaking, to wit: [particulars], contrary to section 145(4) of the Criminal Code."
145(5)	failing to comply with release order	"..., being at learge on a reslease order entered into before a justice or judge without lawful excuse did fail to comply with a condition of said release order, to wit: [particulars], contrary to section 145(5) of the Criminal Code."
733.1	breach of probation	"..., being a person bound by a probation order made [place and date where it was made and judge who made it] without reasonable excuse failed or refused to comply with that order, to wit: [particulars], contrary to section 733.1 of the Criminal Code."
811		"..., contrary to section 811 of the Criminal Code."

Proof of the Offence

Proving failure to comply with release order under s. 145(5) should include: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ that the Crown must prove that the accused was bound by an undertaking or recognizance; ☐ 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 ☐ 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: ☐ identity of accused as culprit ☐ date and time of the incident ☐ jurisdiction (incl. region and province) ☐ the culprit was previously convicted of an offence for which the sentence included a period of probation ☐ the culprit was bound by the probation order at the time ☐ 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 ☐ 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

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.

Validity of Order Not a Defence

An accused charged with an offence that did not exist at the time of the alleged offence, resulting in a nullity, does not affect the validity of recognizance conditions.

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).

Kienapple

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.

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.

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."

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

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.

Forgetfulness

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

Contact/Communicate/Associate

"Contact"

"Contact" has a broader meaning than "communicate" and "associate." Contact does not require communication. Smirking and extending a middle finger can amount to contact with a complainant. However, not every facial reaction upon incidental contact should be considered a breach.

Contact can be found by voluntarily entering into the place of business of the complainant.

Minimal Contact

"Contact" must be more than simply incidental, momentary physical proximity, accidental, fleeting or unavoidable. There must be "an element of purposeful contact that is intrusive, disruptive or communicative." A person is able to go "about their business" without fear that an incidental run-in will cause a breach.

"Communication"

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.

It would appear that any form of communication will also be a form of contact.

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.

The accused must "knowingly or recklessly" breach the specific condition of the undertaking.

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.

Reside and Curfew Condition

A de minimus argument may be available for a breach of cerfew.

A condition to reside at a certain address is breached even though the accused does not have immediate access to the place and must reside elsewhere until the place is available.

Proceeding Ex Parte

803 [omitted (1) and (2)]

Consent of Attorney General required

(3) If the summary conviction court proceeds in the manner described in paragraph (2)(a) [summary offences – conduct ex parte trial], 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.
[omitted (4) and (5) to (8)]
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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Lawful Excuse

145
[omitted (1), (2), (3), (4) and (5)]

Not an excuse

(6) For the purposes of subsections (3) [failure to comply with appearance notice or summons] and (4) [failure to comply with undertaking], it is not a lawful excuse that an appearance notice or undertaking states defectively the substance of the alleged offence.
[omitted (7), (8), (9), (10) and (11)]
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; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Lawful Excuse Under the Contraventions Act

145
[omitted (1), (2), (3), (4), (5), (5.1), (6) and (7)]

Election of Crown under Contraventions Act

(8) For the purposes of paragraph (2)(a) [failure to attend court or surrender – at large on release order] and subsections (3) to (5) [provisions re failure to comply], it is a lawful excuse to fail to attend court in accordance with a summons, appearance notice, undertaking or release order, to comply with a condition of an undertaking or release order or to fail to appear at the time and place stated in a summons, an appearance notice or an undertaking for the purposes of the Identification of Criminals Act if — before the failure — the Attorney General, within the meaning of the Contraventions Act, makes an election under section 50 of that Act.
[omitted (9), (10) and (11)]
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; 2018, c. 29, s. 9; 2019, c. 25, s. 47.
[annotation(s) added]

– CCC (CanLII), (DOJ)

---

Breaches of a Peace Bond

An offence of a "breach of recognizance" under s. 811 is an absolute jurisdiction offence under s. 553(c)(ix) and so there is no defence election. It must be tried by a provincial court judge.

A breach of a peace bond order cannot amount to a breach of an undertaking under s. 145(3).

Terms of a peace bond apply to conduct that occurs in other provinces.

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

Offence(s)	Victim Notice of Agreement s. 606(4.1) [SPIO]	Victim Queried for Interest in Agreement s. 606(4.2) [5+ years]	Victim Notice for Restitution s. 737.1	Victim Notice of Impact Statement s. 722(2)
s. 145(5) [failure to comply with release order]
s. 733.1 [breach of probation]

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

Offence(s)	Crown Election	Maximum Penalty
s. 145(4) [failure to comply with undertaking]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 145(4) [failure to comply with undertaking]	indictable election	2 years incarceration
s. 145(5) [failure to comply with release order]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 145(5) [failure to comply with release order]	indictable election	2 years incarceration
s. 733.1 [breach of probation]	summary election	2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019)
s. 733.1 [breach of probation]	indictable election	2 years incarceration
s. 811 [breach of peace bond]	summary election	18 months incarceration
s. 811 [breach of peace bond]	indictable election	4 years incarceration

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 2 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 2 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 2 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

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(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]	any

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."

Principles

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.

Procedure

Under s. 524, when a release order is violated the judge shall cancel the order and then show cause of why the accused should be released.

Ranges

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

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

Order	Conviction	Description
DNA Orders	s. 145(4) or (5)	If convicted under s. 145(4) or (5), there is a discretionary DNA Order as a secondary designated offence listed under s. 487.04 (c), (d) or (e), regardless of Crown election.

General Sentencing Orders

Order	Conviction	Description
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	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 His Majesty the King on application of the Crown. NB: does not apply to summary offences.
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. NB: does not apply to summary offences.

Record Suspensions and Pardons

Convictions under s. 145(4) or (5) are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years after the expiration of sentence for summary conviction offences and 10 years after the expiration of sentence for all other offences. The offender may not have the record suspended where the offender was (1) convicted of 3 or more offences with a maximum penalty of life, and (2) for each 3 offences he "was sentenced to imprisonment for two years or more".

History

• History of Breach of Undertaking, Release Order or Probation

See Also

• Breach of Release Conditions

References

• Pre-Trial and Trial Motions Checklist