Saturday, February 4, 2017

Breach of Undertaking, Recognizance, or Probation

A very common charge is for "breach". That's a short form way of talking about a case where someone is under a court order to do something, or to not do something, and they don't obey the order. So, for example, you may be charged with assault and released on the basis that you won't drink alcohol until your trial. You could be charged with "breach" if you go ahead and get drunk anyway. Similarly, you might be convicted of, say, theft and ordered to stay out of Arctic Ventures for six months. If you go in anyway you can be charged with breaching your probation.

"Breach" is a serious offence. It is critical that people obey their conditions that they are bound by. What's more, the "breach" is not based on the underlying charge – an example may make this clearer.

Suppose I am charged with assaulting my brother. I get arrested and a justice of the peace releases me on the basis I stay at least 50 metres away from my brother. That's the Court's order. It turns out that my brother doesn't have any problem with me and we both go hunting together. In the end I am acquitted of assaulting my brother.

All that is well and good but I am STILL guilty of breaching the terms of my release. It doesn't matter that I was ultimately acquitted of assault or that my brother and I are ok with each other. A Court order must be obeyed.

What that means is if you have a condition that is tough to fulfil you cannot just ignore the condition – you have to go back to Court and get the condition changed if the Court agrees it should be. If the term is not necessary in the public good, and it's difficult to comply with, the Court will often change the order. Orders are not designed to be traps that lead to breaches.

Court's take breach matters very seriously. People go to jail for breach on a regular basis. The Court has written the "administration of justice and the public's confidence in the administration of justice depends on compliance with such orders". When a Court order is breached the sentence will be serious enough to tell the individual, and the community as a whole, just how serious the matter is. This is especially so where the breach involves someone's intimate partner – girlfriend, boyfriend or spouse. People will be protected by Court orders only so long as the orders are obeyed.

Of the Law Societies of Upper Canada and Nunavut

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