Failing to Comply With Bail

This article will examine offences related to violating conditions of an undertaking or a recognizance of bail. This is commonly referred to as failing to comply (FTC) or breaching conditions. 

Section 145 of the Criminal Code makes it a criminal offence to fail to comply with a condition of an undertaking or release order, without a lawful excuse. These are hybrid offences, which carry a maximum sentence of two years jail. 

How the Crown Proves the Offence of Failing to Comply

The Crown Attorney (prosecutor) is responsible for proving that the accused breached the bail conditions set out in undertaking or the bail order and that the accused person did so intentionally. The Crown Attorney is required that the accused person committed the breach knowingly or recklessly, in order to establish that he or she was breaching a condition. 

The Crown must prove three elements that you have failed to comply with your bail conditions:

• You have been bound to follow the conditions set out in the bail order,
• You breached one or more of these conditions; and
• You intended to breach the condition.

One of the critical points is the intention to breach, as there are instances where it can be argued that you did not intend to breach the condition. For example, if one of the conditions is that you must remain at least 500 meters from a specific person and you were found within less than this, it could be argued you were not aware you were this close or were not aware said person was where you were going in the first place, for example at a public location.

This is one of the many reasons why having an experienced criminal defence lawyer by your side is critical to building a solid defence.

Reasonable Excuses for Violating Bail Conditions

While rare, there are some reasonable excuses for violating bail conditions that may prevent you from being found guilty.

For example, one common bail condition is a curfew, meaning a time during which you are not allowed to leave your home. If there was a medical emergency and you had to go to the hospital, you may have had to breach your curfew, which could be used as a defence against breaching your bail conditions.

While many curfew or house arrest conditions will include a specific exception for medical emergencies, this is not always the case. An experienced criminal lawyer can greatly assist with crafting conditions that are not onerous and do not put an accused person in a position to breach. 

Similarly, circumstances out of your control may lead to you breaching a condition, such as being involved in an accident or getting caught in a snowstorm. While you may still technically be breaching your condition, if the Crown succeeds in proving the actus reus and mens rea, the accused can avoid conviction by providing a lawful excuse for the act or omission that breached the condition.

It is important to note that if you and your legal counsel use cases like this as criminal defence, you must be able to establish that violating your bail was not done intentionally and convince the judge on a balance of probabilities. 

What to Do After Being Charged With Bail Violation

Do Not Plead Guilty

If you have been charged with breaching or failing to comply with the conditions of your undertaking or bail, one thing you should not do is just to plead guilty. The prosecutor must prove you were violating your bail conditions, which is not as straightforward as it may seem at first glance.

Consequences of Pleading Guilty to a Breach

Pleading guilty could lead to a jail sentence, even if you are a first-time offender. However, it can also cause significant problems with getting bail for a future offence and give you a permanent criminal record that could have wide-reaching consequences on your daily life, impacting your chances to secure future employment or accommodation or leading to travel restrictions.

Potential Defences to Breaching Conditions

The burden rests on the Crown Attorney to prove that you are guilty of breaching your conditions. A reasonable excuse may avoid a finding of guilt, even if you are technically breaching your condition. Furthermore, the Crown Attorney may not be able to prove their case if there are issues at trial with police or civilian witnesses, or if the Crown Attorney cannot prove that you were actually bound by a bail order. 

Furthermore, even in circumstances where one may technically be guilty of breaching their conditions, if you were illegally stopped and searched by police, any evidence found could be determined to have been obtained unlawfully and, therefore, might not be admissible in court.

Consult a Criminal Lawyer

It is crucial to consult a criminal defence lawyer prior to making any decisions about pleading guilty in order to review all the evidence in your case and determine if and which potential defences are available to you.

Speak With a Bail Hearing Lawyer

If you have been charged with a breach of recognizance and are worried that a failure to comply with bail conditions could result in severe consequences, contact Farjoud Law at 647-606-6776 today to speak directly to a criminal defence lawyer who personally answers all calls 24 hours a day, 7 days a week, or fill out our convenient online form.

Farjoud Law has an outstanding track record defending clients charged with criminal offences. We are dedicated to professionalism, client services and passionate advocacy.