Breach of Court Order

In Ontario, breach of court order offences are taken extremely seriously by both police and the courts. Whether it involves failing to comply with bail conditions, breaching probation, disobeying a peace bond, or ignoring any other lawful order, the law views such acts as an affront to the authority of the judicial system.

Even if the underlying offence you were charged with is minor, a breach of a court order can result in a separate criminal charge, additional penalties, and a lasting criminal record. In some cases, a breach charge can carry more severe consequences than the original offence.

WHAT THE OFFENCE IS

The term breach of court order refers to any failure to follow a lawful condition set out in a court-issued order. These orders can arise in various legal contexts, including criminal, family, and civil proceedings.

In criminal law, common orders that can be breached include:

• Undertaking – A written promise to abide by specific conditions in exchange for release directly from police custody before trial.
• Recognizance – Received after a bail hearing (with or without a financial pledge) to comply with court conditions before trial.
• Probation Order – A sentence that requires compliance with conditions for a set period of time following conviction.
• Peace Bond – A preventative order requiring a person to keep the peace and be of good behaviour which may have additional conditions to not contact another individual(s).
• Prohibition Order – A restriction on possessing certain items (e.g., firearms, weapons)

Examples of breach scenarios include contacting a person you were ordered not to contact (such as the complainant in a criminal case), consuming alcohol when prohibited by your bail or probation conditions, missing a required court date, being at a location you are prohibited from attending, and failing to report to a probation officer as directed. Even seemingly minor actions – such as sending a “harmless” text to someone you’re ordered not to contact – can result in criminal charges.

TYPES OF CHARGES:

The Criminal Code contains offences for many different types of violations of court orders. Some of the most common offences which Glass Gavel Law can assist you with include:

• Escape and Being At Large Without Excuse (s. 145 (1)) – Applies when you escape from lawful custody.  An example includes not showing up to jail as required under an intermittent sentence that orders you to report to jail every weekend.
• Failure to Attend Court or Surrender (s. 145 (2)) – Applies when you fail to attend court on your scheduled court date.
• Failure to Comply with Appearance Notice or Summons (s. 145 (3)) – Applies when you fail to attend for fingerprints.
• Failure to Comply with Undertaking (s. 145(4)) – Applies when you fail to comply with a condition of an undertaking.
• Failure to Comply with Order (s. 145 (5)) – Applies when you fail to comply with a condition of a release order.
• Disobeying Order of the Court (s. 127 (1)) – A broader provision used when someone willfully disobeys a lawful court order not otherwise covered by a specific section.

POTENTIAL PENALTIES

The potential penalties are determined by the specific section of the Criminal Code in which the charge was laid. The maximum sentence for breaching most court orders is 2 years of jail time and/or a $5,000 fine. The court may also impose new or extended conditions and Judges may impose consecutive sentences for a breach, meaning your jail time is added on top of any other sentence.

WHAT THE CROWN HAS TO PROVE

Relying on documents, the Crown must prove beyond a reasonable doubt that a valid court order existed and applied to the accused at the time of the alleged breach. The Crown must also prove that the accused was aware of the order, typically proven by a signed document or testimony showing the conditions were read in court. It must also be proven that the accused intended to disobey the court order through a voluntary act and there was no lawful excuse due to unavoidable circumstances.

POTENTIAL DEFENCES

You must always follow the conditions of your probation, release, or court order. A case called R v Gibbons, found section 127 of the Criminal Code to be constitutional and not overbroad. Thus, a constitutional challenge to the law is not currently an available defence. The only time a breach is permitted is with a “lawful excuse”, established by showing the court that you took all due diligence to satisfy the obligation. In R. v. Legere, the court held that the offence of failing to comply is a true criminal offence requiring proof of mens rea, or guilty intent, and the mere carelessness or failure to take the precautions that a reasonable person would take will not support a conviction. The issue of lawful justitification or excuse arises only after the Crown has proved beyond a reaonsable doubt the elements of the offence. Other potential defenses include:

1. Lack of Knowledge – If you were never informed of the condition or it was not explained properly, you may not be criminally liable. (e.g., the documents were never served or were not before the court).
2. Ambiguity in the Order – If the wording of the condition was unclear, it might be argued that you could not have known what was prohibited.
3. Identity Defence – If the Crown cannot prove it was you who committed the breach (e.g., surveillance or witness errors).
4. Charter of Rights Violations – If your arrest or investigation involved violations of your rights, whether intentionally or inadvertently by the police, then either some or all of the evidence may be excluded under s. 24(2) of the Charter, weakening the Crown’s case and likelihood of conviction.  

HOW WE CAN HELP

Breach of Court Order offences are considered hybrid charges, meaning the Crown can elect to proceed with the prosecution by way of summary or indictable conviction. A paralegal may act for an accused person where the Crown elects to proceed summarily. Until the Crown makes it election as to proceeding by way of summary conviction or by indictment, a hybrid offence is deemed to be indictable (Interpretation Act, s.34 (1) (a)).  

If you have been charged with a breach of court order offence, contact Glass Gavel Law today for a free, 30 minute consultation.