What Constitutes a Breach
When a court grants bail, it imposes conditions that the accused must follow while awaiting trial. These conditions are set out in a release order (formerly called a recognizance or undertaking). Section 145(3) of the Criminal Code makes it an offence to fail to comply with any condition of a release order without lawful excuse.
A breach occurs when the accused does something the conditions prohibit, or fails to do something the conditions require. The breach does not need to be intentional — though the Crown must prove the accused knew about the condition and failed to comply with it.
Common Types of Breaches
The most frequently charged breaches involve:
- No-contact order violations — Contacting the complainant directly by phone, text, email, or social media, or indirectly through a third party. In domestic assault cases, no-contact orders are standard bail conditions and breaches are prosecuted aggressively.
- Curfew violations — Being outside the residence during restricted hours. Police conduct curfew checks, and being absent when officers attend is treated as a breach.
- Area restriction violations — Attending a location the accused is prohibited from entering, such as the complainant’s home, workplace, or school.
- Failing to report — Missing a scheduled check-in with a bail supervisor or failing to report to a police station as required.
- Failing to reside — Not living at the address specified in the release order, or leaving the jurisdiction without permission.
- Alcohol and drug conditions — Consuming alcohol or drugs in violation of an abstinence condition, or failing to submit to testing.
Consequences of a Breach
A breach of bail conditions triggers two separate consequences:
A new criminal charge. The breach itself is a criminal offence under section 145(3). It is a hybrid offence: on indictment, the maximum is 4 years; on summary conviction, the maximum is 2 years less a day. A conviction results in a criminal record that is separate from the original charges.
Potential revocation of bail. Under section 524, the Crown can apply to have the accused’s existing bail revoked. If the court finds that the accused breached a condition, the onus shifts to the accused to show cause why their detention is not justified. This is a reversal of the normal bail process, where the Crown bears the onus. If bail is revoked, the accused is detained in custody until the trial on the original charges — which can be months or years away.
The combination of these consequences makes bail breaches among the most immediately damaging charges in the criminal justice system. A single text message to the wrong person can result in arrest, a new charge, and loss of liberty until trial.
What Happens at Court
After being arrested for a breach, the accused is held for a bail hearing on the new charge. At this hearing, the court decides whether to release the accused on the breach charge and, critically, whether to allow the existing bail on the original charges to continue.
The Crown may also bring a section 524 application to cancel the original bail. If the court cancels bail, the accused must establish a new basis for release — often with stricter conditions, a higher surety, or cash deposit. In some cases, the court may simply deny bail and order detention.
Courts take bail breaches seriously because they go to the accused’s reliability and willingness to follow court orders. A pattern of breaches makes it progressively harder to secure release.
How Breaches Affect a Bail Review
If the accused is detained on the original charges and seeks a bail review under section 520 or 521, any history of bail breaches is a significant factor. The reviewing judge will consider whether the accused has demonstrated a pattern of non-compliance that undermines confidence in their ability to follow future conditions.
Conversely, if the accused has been on bail for a significant period without any breaches, that compliance record strengthens the argument for continued release. A clean bail record is one of the most persuasive factors in a bail review.
Defence Strategies
Lack of knowledge. The Crown must prove the accused knew about the condition. If the condition was added at a court appearance the accused did not attend, or if there is confusion about the terms of the release order, the accused may not have had the requisite knowledge.
Lawful excuse. Section 145(3) provides that a failure to comply is only an offence if it is “without lawful excuse.” Medical emergencies, safety concerns, and other circumstances that made compliance impossible or dangerous may constitute a lawful excuse.
The breach did not occur. The Crown must prove the facts of the breach beyond a reasonable doubt. If the allegation is a curfew violation, was the accused actually absent? If it is a no-contact order, did the accused actually initiate contact, or did the complainant contact them?
Ambiguous conditions. Bail conditions are sometimes drafted vaguely. If the condition is unclear or susceptible to more than one interpretation, the accused may argue that their conduct did not fall within the prohibition.
Charter challenges. If the police obtained evidence of the breach through an unlawful search — for example, searching the accused’s phone without a warrant to find text messages — that evidence may be excluded under section 24(2).
Representative Case Results
The following results involving breach and fail to comply charges are drawn from the firm’s published case outcomes:
- R v R.R. — Client charged with obstruct justice, interference with a justice system participant and fail to comply with recognizance x 4 had charges withdrawn in Oshawa after the commencement of the preliminary inquiry. The defence raised evidence contradicting the main point of the complainant’s police statement. As a result, the Crown chose to withdraw the charges rather than proceed.
- R v L.A. — Client charged with failing to appear in Court had charges withdrawn at 2201 Finch Court. The Crown could not prove that the accused had missed court knowingly and as a result, the Crown chose not to proceed.
What to Do If You Are Charged
A breach of bail conditions puts your liberty at immediate risk. If you have been charged:
- Exercise your right to silence. Do not explain or justify the breach to police. Anything you say will be used at the bail hearing.
- Contact a lawyer immediately. You will need representation at the bail hearing, which typically occurs within 24 hours of arrest.
- Prepare for a bail hearing. A surety (someone who will supervise you in the community) and a plan for stricter conditions can make the difference between release and detention.
- Do not commit further breaches. Additional breaches dramatically reduce the likelihood of release and increase the severity of any eventual sentence.