INTRODUCTION AND BRIEF DESCRIPTION
Failure to comply with an undertaking without lawful excuse is an indictable offence or an offence punishable on summary conviction.
SECTION WORDING
145(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.
EXPLANATION
Section 145(5.1) of the Criminal Code of Canada discusses the consequences of failing to comply with a condition of an undertaking entered into pursuant to subsection 499(2) or 503(2.1). These two subsections relate to the release of an accused person from custody pending their trial or other proceedings. In essence, an undertaking is a promise or agreement made by an accused person to a court. This undertaking may include conditions that the accused person must follow, such as reporting to the police regularly, staying away from certain people or places, or refraining from drinking alcohol or using drugs. If an accused person fails to comply with any of the conditions of their undertaking, they have committed an offence under Section 145(5.1) of the Criminal Code of Canada. They can be found guilty of either an indictable offence or an offence punishable on summary conviction, which means that they could be facing a prison term of up to two years. It is important to note that the burden of proof lies on the accused person to provide a lawful excuse for their failure to comply with their undertaking conditions. This means that the accused person must prove that there was a valid reason for their non-compliance, such as a medical emergency or other unforeseen circumstances. In summary, Section 145(5.1) serves as a deterrent for accused persons to take their undertakings seriously and to comply with all of the conditions set out by the court. Failure to do so can result in serious consequences, including imprisonment.
COMMENTARY
Section 145(5.1) of the Criminal Code of Canada is a provision that makes it a criminal offence for a person to fail to comply with any condition of an undertaking entered into pursuant to subsection 499(2) or 503(2.1), without lawful excuse. An undertaking is a promise made by a person to a court or a police officer to comply with certain conditions in exchange for being released from custody, pending trial. These conditions may include restrictions on the person's movement, contact with certain individuals, and possession of weapons or drugs. Undertakings are commonly used in cases where a person is considered to pose a risk of reoffending or failing to attend court. Section 145(5.1) creates a serious offence for failing to comply with an undertaking, regardless of whether the underlying offence for which the person was released on the undertaking is ultimately proven in court. This means that a person who is released on an undertaking and then violates its conditions can face a separate criminal charge and potential imprisonment, even if they are ultimately found not guilty of the original offence. The maximum penalty for a violation of an undertaking under this provision is two years imprisonment if the offence is prosecuted by way of an indictment, or a lesser penalty if prosecuted summarily. In addition to imprisonment, a person who is found guilty under this provision may also face a fine and additional conditions may be added to their undertaking. The purpose of this provision is to ensure that people who are released on undertakings comply with the conditions set out in those undertakings. Failure to comply with these conditions may pose a risk to public safety or may increase the likelihood that the person will not attend court. By creating a separate offence for failing to comply with an undertaking, the Criminal Code aims to deter people from violating these conditions and ensure that those who do are held accountable. However, there are some concerns about the use of undertakings and the criminalization of their violation. Some critics argue that the use of undertakings can disproportionately affect marginalized communities, who may not have the resources to meet the conditions set out in the undertakings. In addition, the criminalization of their violation may result in the over-incarceration of individuals who are not a risk to public safety and who may have otherwise complied with their undertakings. In conclusion, while Section 145(5.1) of the Criminal Code of Canada serves an important purpose in ensuring compliance with court orders, it is important to carefully balance the need to protect public safety with the potential harms of over-criminalizing certain behaviours. As such, there may be merit in revisiting the use of undertakings and exploring alternative approaches to ensuring compliance with court orders.
STRATEGY
Section 145(5.1) of the Criminal Code of Canada is a key provision that pertains to breaches of undertakings entered into pursuant to various legal provisions. This section makes it an offence to fail to comply with any condition of an undertaking entered into under either subsection 499(2) or 503(2.1). In light of the seriousness of this offence and the potential penalties that it carries, it is essential for individuals and legal professionals to carefully consider the strategic options for dealing with this provision. One of the key strategic considerations for dealing with section 145(5.1) is to understand the legal requirements of the section and the evidence that the Crown may need to prove the offence. This section requires that the Crown prove beyond a reasonable doubt that the accused person failed to comply with any condition of the undertaking entered into. Therefore, it is important to thoroughly examine the conditions of the undertaking, and determine whether any potential breaches have occurred. Another important consideration is the potential defences that may be available to the accused person. These may include a valid excuse for failing to comply with the condition of the undertaking, mistake of law, or a lack of intention or knowledge. It is essential to examine all potential defences and determine the best defence strategy. Legal professionals should also be prepared to negotiate with the Crown if the evidence against the accused person is strong. This may involve seeking a plea bargain, where the accused person agrees to plead guilty to the offence in exchange for an agreement on the penalty or sentence. A plea bargain can be a effective strategy to minimize the potential penalties and avoid some of the more serious consequences of a conviction. Another important consideration when dealing with section 145(5.1) is to maintain clear and effective communication with the accused person throughout the legal proceedings. This includes ensuring that all relevant information is clearly explained to the accused person, that all potential defences are explored, and that the accused person is fully informed of their rights and options. Overall, there are several strategic considerations and potential strategies when dealing with section 145(5.1) of the Criminal Code of Canada. Legal professionals should carefully examine the legal requirements of the section, explore potential defences, negotiate with the Crown if appropriate, and maintain clear and effective communication with the accused person throughout the legal proceedings. By taking these steps and employing effective legal strategies, it is possible to successfully defend against charges under this provision and minimize the potential consequences of a conviction.