Breach of Bail Conditions in Ontario

Types of failure to comply charges

The charge depends on the document that bound you and the rule you are said to have broken. An undertaking is a written promise you sign, often at a police station, while a release order is a set of terms made by a court, so the charge is different for each.

• Failing to attend court or surrender (s. 145(2)): You did not attend court, or turn yourself in, when a release order or a related court order required it.
• Failing to attend under an appearance notice or summons (s. 145(3)): You did not attend court, or attend for fingerprints, as the notice or summons required.
• Failing to comply with an undertaking (s. 145(4)): You broke a condition of an undertaking, or did not attend court or fingerprinting as it required.
• Failing to comply with a release order (s. 145(5)): You broke a condition of a release order other than the duty to attend court, which includes certain no-contact orders.

Each charge can be prosecuted by indictment, which is the more serious route with a maximum of two years in jail, or by summary conviction, which is the less serious route. A maximum is the upper limit, not a prediction of the outcome.

Common breaches

The exact wording of your order matters more than a short label like "no contact" or "curfew." Some conditions have exceptions and some do not, so read the full term, including any rule about indirect contact or a particular address. The most common allegations involve:

• Texting or calling someone covered by a no-contact term.
• Going to an address you are banned from.
• Not being home during a curfew when police come to check.
• Drinking alcohol when you are not allowed to.
• Missing a court date or a fingerprinting appointment.

For example, a complainant may text you to ask about picking up belongings. Their message does not cancel a no-contact term that binds you, so keep the message and get advice before replying.

What the Crown must prove

Consequences of a breach

A breach allegation can cause two problems at once, because you face a new criminal charge, and the Crown can ask the court to cancel the release you already have.

Under s. 524, the court must cancel your release if it is satisfied that there are reasonable grounds to believe you broke a condition or committed another offence while on release. Being arrested does not cancel your release on its own, because a judge or justice has to make that decision after hearing from both sides.

If your release is cancelled, the burden shifts to you, and instead of the Crown proving that you should stay in custody, you have to show why you should be released again, and clearly demonstrate that your plan deals with the risks (s. 524(4)). The same applies to the new breach charge itself if you were on release for another offence when it allegedly happened (s. 515(6)(c)). This shift in the burden is called a reverse onus.

Your surety can be affected as well, because the court can order them to pay some or all of the money they pledged. This is not automatic, and the surety gets a chance to explain. See our bail sureties guide.

Judicial referral hearings

Some breaches can be dealt with at a judicial referral hearing (s. 523.1). This option is for cases where the failure did not cause harm to a victim or cause loss or damage. The Crown has to choose this route, and the court has to agree that the legal requirements are met.

At the hearing, the judge reviews your release terms and may take no action, replace your release with a new release order or, if the Crown shows the legal grounds, order you detained. Once the judge makes a decision, any charge for that breach is dismissed, and no new charge can be laid for it. It is not something you can choose instead of going to court, so ask us whether it could apply to you.

Possible defences

• Lawful excuse: For example, a medical emergency overlapped with a court date. Keep the hospital records and any other documents that confirm what happened.
• No knowledge: You were not properly told about the condition.
• An unclear condition: The wording did not clearly forbid what you did.
• Identity or proof: The evidence does not show that you were the person involved, or that the contact actually took place.

If the allegation involves a message, keep the whole conversation and the account details, because a cropped screenshot may leave out context. Do not contact the complainant or a witness to argue or to ask them to drop the matter.

Change conditions before they cause a problem

If a condition does not work, ask to change it rather than ignoring it. A release order made under s. 515 can be varied with the written consent of you, the Crown and any sureties (s. 519.1), or reviewed by a court. See our bail reviews guide. For example, a new job may be at a place covered by a stay-away term. Get the change signed before you start, because asking does not cancel the term.

Breaches in domestic cases

A no-contact term still applies even if you and the other person both want contact, because private permission does not change a court order. Depending on the wording, contact through a friend or relative may also be banned. Do not use someone else to send a message you cannot send yourself. If there is a genuine emergency involving the other person, call 911 rather than contacting them directly. Our guide to domestic assault bail and no-contact conditions explains more.

Breach charges and sentencing

If you are convicted of a breach, the sentence depends on the seriousness of the breach, your record and whether the breach involved contact with a complainant or a risk to safety. Repeated breaches are treated more seriously, and a breach can also affect the outcome of the original charge, because the court may view it as a sign that conditions will not be followed in the future.

How we can help

We can review the charge, your release papers and the evidence. We can also help you stay in line with your terms while your case continues. Call (647) 223-1980 for a free consultation.

Frequently asked questions