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Failure to comply with bail

Fail to Comply with Bail Conditions

A bail is a court order. If and when you you fail to comply with the conditions of your release, you can be charged with

Breach of Bail (Breach of Recognizance)(Fail to comply with Undertaking)

s.145 Criminal Code of Canada

Bail is a court order.  The proper legal term is Judicial Interim Release.  When a person is arrested they can be released on an undertaking without conditions or an undertaking with conditions at the location of the arrest or from the Police Station.  If not released by police, an accused person will be held for a bail hearing.  The initial bail appearance must take place within 24 hours of the arrest. 

Breach of any bail conditions, whether contained in an undertaking or a Court ordered bail is serious and can often result in the imposition of a period of time in jail.  Again, it is important to consult a lawyer when charged with this offence.  Firstly there are technical defences available requiring the Crown to establish their case.  However, if the Crown has that covered, then defence counsel can often conduct negotiations with the Crown for a very favourable disposition.  
In fact, we have in many cases negotiated the withdrawal of a breach of undertaking (beach of bail) charge for our clients.

Undertakings often contain conditions stipulating any number of different restrictions including but not limited to 

  1. A specific residence,
  2. Curfew,
  3. No contact or communication with a perspective witness or complainant.
  4. Not to attend within a prescribed area 
  5. No weapons
  6. No driving 
  7. Restricted internet access

It is has been our experience that the Police will sometimes over reach with respect to the conditions that are listed on an undertaking when releasing an individual without a bail hearing. Unfortunately, sometimes an accused will sign an undertaking just to get out, not realizing the impact of the restrictions on him/her.  It is important to call a lawyer from the police station to discuss the terms in advance to signing off on the undertaking.

Failure to comply with bail

At a bail hearing the presiding Justice will hear evidence and can release an individual with or without conditions, or in the alternative order detention.

The charge of Breach of Recognizance is found at s. 145 of the Criminal Code.

s.145

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.

Variation of an undertaking or court bail restrictions

It is often necessary that bail conditions be varied to accommodate the specific circumstances or change of circumstances.  Variation of the terms can be accomplished in 2 ways.

  1. With Consent of the Crown attorney.  

                  This is the easiest and most efficient method of changing the terms of a bail order.

                  Unfortunately, it requires the consent of the Crown.  A request is submitted in writing

                  and followed up with a telephone call to the Crown attorney.  If the Crown provides 

                  consent, documentation is prepared setting out the variation requested and 

                  provided to the Court for approval.

  1.  If the Crown does not consent to the variation of the bail terms, an application to vary the provisions can be made to the Court.   This is obviously more time intensive and as a result a more expensive process.  The ultimate decision regarding the variation is for the presiding Justice to determine after hearing evidence.

It is important that variations to bail orders be sought to avoid being charged with  breach of bail (breach of recognizance). This issue often arises in the context of domestic assault cases, where the non communication, non contact order must be amended to provide for needed exceptions.

Failure to comply with bail

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