Canadian Criminal Law/Offences/Breach of Undertaking, Recognizance, or Probation

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Breach of Undertaking, Recognizance, or Probation
s. 145 of the Crim. Code
Election / Plea
Crown Election Hybrid
Jurisdiction Prov. Court
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)
Maximum 6 months and/or $5,000
Indictable 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)
Maximum 2 years jail
References
Offence Elements
Sentence Principles
Sentence Digests

Summary[edit]

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.

Charges will typically arise from violating any under of conditions, including:

  • failing to keep the peace
  • failing to be of good behaviour
  • failing to attend court,
  • contacting certain named persons,
  • possessing or using drugs, alcohol, or weapons
  • being outside of their residence at certain hours,
  • failing to follow through with programs

Legislation[edit]

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.

CCC

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.

CCC

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.

CCC

Proof of Offence[edit]

The Crown should prove the following elements for each offence:

145(3)[edit]

  1. identity of the accused as the culprit
  2. the jurisdiction of the incident
  3. the time and date of the incident
  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. that the accused had the appropriate mens rea, which is to say that the accused knowingly 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 at para. 10

145(5.1)[edit]

  1. identity of the accused as the culprit
  2. the jurisdiction of the incident
  3. the time and date of the incident
  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 that the accused failed to perform an act required to be performed by that undertaking;
  6. (mens rea) the accused knowingly and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.

733.1[edit]

  1. identity of the accused as the culprit
  2. the jurisdiction of the incident
  3. the time and date of the incident
  4. the accused was previously convicted of an offence for which the sentence included a period of probation
  5. the accused 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 accused knowingly and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.

In considering the offence of breaching probation under s. 733.1, the use of the word "wilfully" was observed to denote "a legislative concern for a relatively high level of mens rea requiring those subject to the Probation Order to have formed the intent to breach its terms and to have had that purpose in mind while doing so"[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]

  1. R v Docherty, 1989 CanLII 45 (SCC), [1989] 2 SCR 941 at para. 13
  2. R v Docherty at para. 14

Interpretation[edit]

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".

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.[1]

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.[2]

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

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.[4] This is likewise the case in proving an order of disqualification from driving.[5]

  1. R. v. Flores-Rivas 2008 BCSC 1595 at paras. 15-16
    R. v. Ludlow 1999 BCCA 365, (1999), 136 C.C.C. (3d) 460
  2. R. v. Sugg, 1986 CanLII 124 (NSCA)
  3. R. v. Docherty, [1989] SCR 941, 1989 CanLII 45 (SCC)
  4. Lebreux [1993] N.W.T.J. No. 97
  5. R. v. Tatomir, 1989 ABCA 233

Keep the Peace and be of Good Behaviour[edit]

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. Steele at p. 256
  2. R. v. Badenoch, [1969] 1 C.C.C. 78
    R. v. S.S., 1999 CanLII 18981 (NL CA)
    R. v. Gosai [2002] O.J. No. 359 (S.C.J.)
  3. R. v. Shea, 2010 NSPC 70
  4. R. v. R. (D), 1999 CanLII 13903 (NL C.A.); R. v. Grey 1993 Ont Ct. Prov. Div.
  5. R. v. R.(D.) 138 CCC 3d 405 (NFCA)
    R. v. Grey (1993) 19 CR 4th 363 (Ont.)
    R. v. Barker (1967), 3 C.R.N.S. 58 (Y.F. Mag. Ct.)
  6. R. v. M.(S.A.M.) [1994] SJ No 537 (SKPC);
    R. v. Johnson (1993), 90 Man. R. 2d 43
    R. v. Steele

Forgetfulness[edit]

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

  1. R. v. Bremmer, 2006 ABPC 93

Contact/Communicate/Associate[edit]

Smirking and extending a middle finger was found to amount to contact with a complainant.[1] The purpose of the communication has no bearing on the meaning of "communication" in the offence.[2]

"Contact" has a broader meaning than "communicate and "associate".[3]

"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".[4]

Since there must be intent when breaching a contact order, simply running into a person by accident will not be sufficient.[5]

  1. R.v.Dupuis, 2006 NSPC 66
  2. R.v.F.(J.) [2001] O.J. No. 2054
  3. R. v C.A.H. [2010] A.J. No. 1354
  4. R. v. Eyles, 2012 ONCJ 463 at 33
  5. R. v. Eyles, 2012 ONCJ 463 at 32

Possession of Weapons[edit]

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 - accused bought rifle while in Michigan, no evidence of possession within Canada

Case Digests[edit]

  • R. v. R. v. Josephie, 2010 NUCJ 7 -- failing to appear
  • R. v. Tan, 2010 ABPC 163 -- acquittal for breach of curfew; de minimus principle