Breach of Bail Conditions in Ontario

Failing to follow a condition of a release order without lawful excuse is an offence under section 145 of the Criminal Code, commonly called "failure to comply with a release order", "fail to comply" or "breach of bail". It is a hybrid offence: the Crown can proceed summarily or by indictment, where the maximum sentence is two years.

A breach charge also affects the original case. The police can arrest the person, and the court can cancel the existing release order and hold a new bail hearing, where the accused may face a reverse onus.

In R. v. Zora, the Supreme Court of Canada held that a breach requires subjective fault. The Crown must prove that the person knew about the condition, or was wilfully blind to it, and knowingly or recklessly failed to comply. An honest mistake or an accident, such as being late because of a transit breakdown, is not the same as a deliberate breach, although each case depends on its facts.

The Court in Zora also stressed that conditions themselves must be necessary, reasonable and as least onerous as possible, because unnecessary conditions set people up to fail.

Where a breach did not cause harm to a victim, the Criminal Code allows the Crown to send the matter to a judicial referral hearing instead of laying a new charge. At that hearing the court can take no action, change the conditions, or cancel the release and order detention. It avoids a new criminal record for minor administrative breaches while still addressing the problem.

1. The person may be arrested and held for a bail hearing on the breach and the original charge.
2. The Crown may apply to cancel the original release order.
3. At the new hearing, a reverse onus may apply, meaning the accused must show why detention is not justified.
4. The surety may be asked to explain what they knew and did, and the Crown may later seek to forfeit their pledge.
5. The breach charge proceeds separately, unless it is diverted or resolved.

• Curfew and house arrest terms
• No-contact and no-go conditions
• Residence conditions after moving without a variation
• Alcohol or drug abstention terms
• Failing to attend court

Most of these are avoidable with a timely bail variation. If a condition no longer fits your life, the safe step is to change it, not to ignore it.

Book a consultation online (30 minutes, $150 plus HST, paid when you book) or call (647) 271-1646. The phone is answered 24 hours a day, so a family member can call as soon as someone is arrested.

Section 145 of the Criminal Code uses three names for the document that sets your conditions, and the charge you face depends on which one you were bound by.

• Undertaking. The form the police give you at the station or at the scene when they release you without a bail hearing. It lists your first court date and any conditions the officer added, such as staying away from a person or an address. Breaking one of those conditions is failure to comply with an undertaking under s. 145(4).
• Release order. The order a justice of the peace or a judge makes in bail court, with or without sureties and with or without a cash deposit. Breaking one of its conditions is failure to comply with a release order under s. 145(5), the most common breach charge in Toronto courts.
• Recognizance. The older word for a bail document that bound you, and often your surety, to pay a sum if the terms were not followed. Bail paperwork stopped using it in December 2019, when the current release order wording came into force, but it still appears on orders made before then and on peace bonds under s. 810. Breaching a peace bond is a separate offence under s. 811, not a s. 145 charge.

Whatever the form, the offence is the same in substance: being bound by a condition and failing, without lawful excuse, to follow it. Police lay the charge by reading the condition against what they say you did, so the exact wording of the document matters. A condition to reside at an address is different from one to remain inside it, and no communication is wider than no contact in person. Ask for a copy of the document if you do not have one; the court file and your surety each have one.

If you are charged under one subsection but the paperwork shows you were bound by a different form, or that the condition was not worded the way the charge says, that mismatch is one of the first things we check in disclosure. The same review covers whether the condition was still in force on the date alleged, because an order that was varied, replaced after a new charge, or ended when the case finished cannot be breached.

A missed court date is handled under different subsections, covered next. Breach of probation under s. 733.1 is a different order, made at sentencing, and we cover it on its own page.

Not showing up for court is its own offence. Under s. 145(2), a person on a release order who fails without lawful excuse to attend court as the order requires, or to surrender into custody when ordered, commits an offence. Under s. 145(3), (4) and (6) the same applies to a person who misses a date set by a summons, an undertaking or a confirmed appearance notice, including a date to attend the police station for fingerprints and photographs under the Identification of Criminals Act. People call it failure to appear or fail to attend; the court paperwork says fail to attend court. Like the other s. 145 offences it is hybrid, and on indictment the maximum is two years.

When your name is called and you are not there, the judge or justice of the peace can issue a warrant for your arrest, usually called a bench warrant. In Toronto courts there are two kinds:

• A discretionary bench warrant, often written as a bench warrant with discretion. The warrant is signed but held for a short period, and if you come to court before that period runs out it is cancelled without an arrest. Judges use it where someone has attended every other date, or where a lawyer can say the person is on the way or had a reason.
• A non-discretionary bench warrant. The warrant goes out immediately. Police can arrest you anywhere, at any time, including at a traffic stop or at the border, and you will be held for a bail hearing on the new charge and the old one.

A missed date does more than add a charge. If you were on a release order, the Crown can ask the court to cancel it under s. 524, and at the new bail hearing you will have to explain the absence before the court considers releasing you again. Your surety will be asked why they did not get you to court, and the Crown can start proceedings to collect the money they pledged. A finding of failing to attend also follows you into every future bail hearing, where the court asks whether you can be trusted to come back.

Your absence does not end the case against you either. Nothing is dismissed because you were not there. The matter is held with a warrant outstanding until you are brought in or come in on your own, and the time that passes while you are away is counted against you, not the Crown, if delay is later argued.

The faster you deal with a missed date, the smaller the problem usually is. These are the steps we give people who call us on the day they realize they were supposed to be in court.

• Find out what happened in court. Call a lawyer the same day. We can check whether the warrant is discretionary and how many days you have, or whether it is already out for execution. Do not wait for police to come to the door.
• If the warrant is discretionary, go to court before it expires. You attend the same courtroom, the matter is spoken to, and the warrant is cancelled. Bring proof of whatever kept you away: a hospital record, a letter from an employer, a towing receipt. Your release order usually continues on the same terms.
• If the warrant is non-discretionary, arrange a surrender. Turning yourself in with a lawyer, at a time when a bail hearing can happen the same day, is very different from being arrested on a Friday night and spending the weekend in custody. We contact the officer in charge and the Crown in advance, prepare the surety, and come to the hearing with the explanation ready and, where needed, a stronger release plan. Our bail hearings page explains what the court looks at.
• Collect your paperwork. The release order or undertaking, any notices from the court, and anything showing you tried to attend or to tell someone. Text messages to your surety or lawyer on the morning of court can matter.
• Tell your surety. They are in a far safer position if they hear it from you and help bring you in than if they learn about the warrant from police. A surety who acts promptly has a much better answer if the Crown later asks the court to take their money.

Once the warrant is dealt with, the fail to attend charge itself still has to be resolved. Where the absence was a genuine mix-up, the person came in quickly and the underlying case is minor, the Crown may withdraw the breach as part of resolving everything together, or send it to a judicial referral hearing. Where there is a pattern of missed dates, the Crown treats it as a sign the person will not come back, and the breach becomes a reason to seek detention. That is why speed matters more than almost anything else you can do.

Every subsection of s. 145 says 'without lawful excuse'. Those three words are part of the offence, and they give the person charged a defence that is separate from the knowledge and intent question covered above. Knowledge asks whether you knew about the condition and chose to break it. Lawful excuse asks whether, even if you did break it, the law treats your reason as a good one.

The Criminal Code does not list what counts. Courts have accepted excuses that fall into a few groups:

• Emergencies and necessity. Leaving the house during a curfew to take a child to hospital, or going into a forbidden area because a police officer or paramedic directed you there.
• Impossibility outside your control. You were in custody on another matter on the court date, you were in hospital, or a condition required you to live at an address you were lawfully evicted from before you could get the order changed.
• Compliance with another lawful order. A family court order, a lawful instruction from an employer, or a police direction that conflicted with a bail term.
• Doing what the condition actually allowed. Many orders contain exceptions, such as except for the purpose of employment or except with the written consent of the surety. If you were inside an exception, you were not in breach at all.

Some reasons are not lawful excuses, however sympathetic: forgetting the date, not understanding a condition that was read to you in a language you do not speak well, or believing your partner had agreed to contact despite a no-contact term. Those facts can still matter, because they go to knowledge and to sentence, and a condition you could not understand is a strong reason to ask for a variation. But they are argued under a different heading.

The way the burden works favours the person charged. You do not have to prove your excuse. Once there is evidence at trial that raises a lawful excuse, the Crown must prove beyond a reasonable doubt that there was none. That evidence can come from the Crown's own witnesses, from documents, or from your testimony. We gather it early: hospital and employer records, transit and phone records, the surety's account, and the exact text of the order. Where the excuse is solid, we put it to the Crown before trial, because a breach charge that cannot be proven is often withdrawn rather than tried. Where the excuse is partial, it still shapes the sentence and the Crown's position at the new bail hearing.