INTRODUCTION AND BRIEF DESCRIPTION
Section 145 of the Criminal Code sets out the offence of breach of recognizance or breach of recog
145(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.
A breach of an undertaking or recognizance is considered a process crime. Every undertaking and recognizance contains statutorily imposed conditions, including a catch-all condition to keep the peace and be of good behavior. Any new crime committed while at large on an undertaking or recognizance will result in a breach charge being laid.
Section 145(3) of the Criminal Code of Canada outlines the offence of failure to comply with an undertaking or recognizance, or a direction or order given by a justice or judge. This provision is an essential tool for maintaining public safety, ensuring the proper functioning of the justice system, and holding individuals accountable for their actions. The section applies to anyone who is at large on an undertaking or recognizance given by a justice or judge and who is bound to comply with a condition of that undertaking or recognizance. It also applies to individuals who are bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2). Failure to comply with these conditions, directions, or orders without lawful excuse is a criminal offence. The consequences for failing to comply with an undertaking, recognizance, direction, or order are severe. The offender can be charged with an indictable offence or an offence punishable on summary conviction. If convicted, the offender can be sentenced to a term of imprisonment not exceeding two years, fines, or both. The provision serves several essential purposes in the criminal justice system. First, it ensures that individuals who are awaiting trial or sentencing remain accountable for their actions. Without this provision, individuals could leave prison on an undertaking or recognizance and disappear, making it challenging for the system to track them down and ensure they show up for their court dates. By holding individuals accountable, Section 145(3) ensures that the justice system functions effectively and efficiently. Second, Section 145(3) serves as a public safety measure. If someone is out on an undertaking or recognizance and fails to comply with the conditions, they could represent a danger to themselves or others. By making it a criminal offence to violate these conditions, the provision promotes public safety by ensuring that individuals are held accountable for their actions. Third, Section 145(3) shows that the criminal justice system takes the responsibility of those who are at large seriously. The provisions of the Criminal Code of Canada are not recommendations; they are legally binding. By holding individuals accountable for failing to comply, the system sends a message that they will be taken seriously and that there will be consequences for failing to comply. In conclusion, Section 145(3) of the Criminal Code of Canada is an essential provision for ensuring public safety, maintaining the proper functioning of the justice system, and holding individuals accountable for their actions. By making it a criminal offence to fail to comply with an undertaking, recognizance, direction, or order, the provision promotes accountability and public safety, and sends a message that the justice system takes its responsibilities seriously.
Bail conditions are designed to assist in preventing the repetition of a crime. Unfortunately, it is not uncommon for bail conditions to be imposed excessively or designed in such a way that they induce a breach. This reality has been echoed in recent Supreme Court decisions which have attempted to revamp Canada's bail system and reflect the constitutional baseline that all accused are to be presumed innocent until proven guilty. Still, the system needs to be able to strike a balance between imposing preventative conditions, and being overly punitive in nature. Strategically, it is imperative that an accused do their best to comply with their bail conditions. In the event of a breach, an accused is more likely to be detained pending their trial, and is often stuck with the unenviable choice of waiting months for a trial, or accepting a resolution that involves a plead of guilty in a time-served situation. Metaphorically, a breach of recognizance or undertaking can result in forcing the accused's hand. In situations where a breach is laid, it is important to note that a breach of recognizance or undertaking is a true mens rea offence. That is, it must be proven beyond a reasonable doubt that the accused intended to breach their bail conditions, as opposed to accidentally or carelessly breached their bail. This may sound obvious, but many grey breaches occur, where the answer as to whether it constitutes a criminal level breach is not immediately apparent. Typically, breaches of an undertaking or recognizance are pursued separately from the substantive charges. However, if the breach itself is as the result of a new substantive charge, it is not uncommon for a court information or indictment to contain a mix of substantive charges and breaches. Consider, for example, a situation where an accused is charged with theft and released on an undertaking with conditions. Shortly thereafter, the accused is charged with a new and separate theft, while at large on an undertaking. The result would be an accused with two separate informations, the first with a charge of theft, the second with a different charge of theft as well as a breach of undertaking for failing to keep the peace and be of good behavior. The accused would appear in court within twenty four hours and be presumptively detained pending their trial unless they were able to show cause why they should be released. The practical result will be a forced contemplation of a plea resolution, where much of the accused's bargaining power is gone.
QUESTIONS AND ANSWERS
Can I go to jail for a breach of recognizance?
Yes. A breach of recognizance is taken very seriously by the court, as it is a breach of a judicial order. Upon conviction, it has been shown that an accused has failed to follow rules set out by the Court. Accordingly, courts have reasoned that if an accused cannot be trusted to abide by conditions imposed, the appropriate judicial response is often the imposition of a jail term, where the public can rest assured that the punishment is being imposed absent the requirement that the accused abide, in contrast to a conditional jail sentence or probationary term.
Can I go to jail for a breach of undertaking?
Yes. The court can impose a sentence of up to two years of jail. That said, it is rare that the maximum sentence is imposed. A typical tariff for a typical breach is a thirty day jail sentence, but the actual sentence imposed will vary greatly depending on the nature of the breach and the circumstances of the accused.