Canadian Criminal Sentencing/Offences/Breach of Undertaking, Recognizance, or Probation
| 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)) |
| Maximum | 6 months and/or $5,000 |
| Indictable Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Maximum | 2 years jail |
| References | |
| Offence Elements Sentence Principles Sentence Digests | |
Legislation
edit145.
...
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
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 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.
– CCC
Application
editPrinciples
editIt is "critical" that persons obey their conditions that they are bound by. [1]
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.[2] 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.[3]
Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty.[4]
Where a intimate partner is the subject of alleged violence the complainant has a right to be left alone by the accused.[5]
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. [6]
Breaches of court orders "will generally be made consecutive to the other related offences."[7]
The purpose of a s. 810 recognizance is to protect the public by preventing future criminal activity.[8]
- ↑ R. v. Bates, 2000 CanLII 5759 (ON CA) [1]
- ↑ R. v. Seaward, 2003 CanLII 43484 (NL PC) at 24
- ↑ R. v. Labbe, 2006 CanLII 36608 (ONCA)
- ↑ R. v. Murphy, [2011] N.J. No. 43 (C.A.) at 34
- ↑ R. v. Denkers 1994 CanLII 2660 (ON CA), (1994), 69 O.A.C. 391, at p. 394
- ↑ R v Helary, 2007 NLCA 47, 268 Nfld & PEIR 267 at para 16
- ↑ R. v. Hutchings, [2012] N.J. No. 12, (NLCA) at para. 86
- ↑ R v Ballantyne, 2009 SKCA 27, 324 Sask R 71 at para 5