A breach of undertaking is a criminal offence that occurs when an individual fails to comply with the conditions they agreed to after being released by the police or the court. In Canada, undertakings are legally binding promises made by an accused person in exchange for being released from custody before trial. These undertakings come with specific terms such as reporting to the police, avoiding contact with certain individuals, or not consuming drugs or alcohol. If any of these conditions are violated, it can result in a separate criminal charge, known as a breach of undertaking.
This article provides a detailed overview of what a breach of undertaking is, when it applies, the legal consequences of breaching, and how a criminal defence lawyer can help you respond to the charge and protect your rights.
What Is an Undertaking?
An undertaking is a written agreement entered into by a person who has been arrested but is released by the police or court before their trial date. It is commonly used for individuals charged with less serious offences who are not considered a flight risk or a danger to the public. Undertakings are governed by section 498 to section 503 of the Criminal Code of Canada, depending on the circumstances of the arrest and release.
A police undertaking typically includes a set of conditions that the accused agrees to follow until their matter is resolved in court. These conditions can include appearing in court on a specified date, staying away from specific people or locations, reporting to a police officer regularly, abstaining from alcohol or drugs, remaining within a specific jurisdiction, or surrendering a passport.
By signing the undertaking, the accused agrees to abide by all the terms listed. Failure to do so can result in criminal consequences.
What Constitutes a Breach of Undertaking?
A breach occurs when an individual violates any of the conditions set out in their undertaking. It does not matter whether the breach was intentional or accidental—if the Crown can prove that the individual failed to comply, a charge may follow.
Common examples of breach include failing to attend court as required, contacting someone listed in a no-contact condition, being present at a prohibited location, failing to report to police, or consuming drugs or alcohol when prohibited.
The Crown must prove that the accused was aware of the condition and failed to comply without lawful excuse. A simple misunderstanding or lack of awareness is generally not accepted as a defence unless it can be clearly demonstrated.
Legal Consequences of Breach of Undertaking
A breach of undertaking is a criminal offence under section 145(5) of the Criminal Code of Canada. It is considered a failure to comply with a court order or legal obligation. Even if the original offence was relatively minor, a breach charge can escalate the situation.
Penalties for breach may include a criminal conviction, fines, probation, additional or stricter bail conditions, revocation of release and detention until trial, and a negative impact on the outcome of the original charges. If the accused was released on an undertaking and then breaches the conditions, the court may view them as unreliable or unwilling to follow court orders. This can make it harder to get bail in the future and may influence sentencing if convicted.
How a Breach Charge Affects Your Original Case
A breach of undertaking charge becomes part of your criminal record, even if the original charge is later withdrawn or dismissed. The new charge can also delay the resolution of your case and increase the likelihood that the Crown will seek jail time. In some cases, the breach charge may be used as leverage during plea negotiations or to argue against release on bail. It can also affect your credibility in court and damage your standing in front of a judge.
Common Defences for Breach of Undertaking
There are legal defences available depending on the facts of your case. A criminal defence lawyer can review the details and determine the most effective strategy.
Common defences include lawful excuse such as a medical emergency, travel disruption, or family crisis that prevented compliance, lack of intent where the accused made a genuine effort to comply but failed due to circumstances beyond their control, unclear or ambiguous conditions where the undertaking was written in a way that created confusion, and Charter violations if the undertaking itself was issued or enforced in a way that violated your rights under the Charter.
In some cases, your lawyer may be able to negotiate with the Crown to have the breach charge withdrawn, especially if it is a first offence or if you took immediate steps to correct the breach.
How a Criminal Defence Lawyer Can Help
Facing a breach of undertaking charge can be intimidating, especially if you are already dealing with other criminal allegations. A criminal defence lawyer can help you understand your legal obligations, analyze the strength of the Crown’s case against you, determine if a defence or lawful excuse applies, advocate for a withdrawal or alternative resolution, and represent you in court to argue for release or lenient sentencing.
Your lawyer can also assist in applying to vary the conditions of your undertaking if they are too difficult to comply with or if your circumstances have changed.
Preventing a Breach of Undertaking
The best way to avoid a breach is to understand and strictly follow all the conditions of your undertaking. Make sure you attend all court dates, keep records of any police or probation check-ins, avoid people and places listed in your conditions, and speak to your lawyer immediately if you are unsure about any term or need help complying.
If circumstances change and you can no longer meet a condition, your lawyer can apply to the court to vary the undertaking legally. Never change your behaviour without court approval, as doing so can still result in a breach.
Why Choose De Boyrie Law
At De Boyrie Law, we have extensive experience defending individuals charged with breach of undertaking and related offences. We understand how these charges can complicate your legal situation and impact your freedom. Our legal team will assess your case, explain your options clearly, and build a defence strategy focused on resolving the matter with the least impact on your life. Whether you are seeking to fight the charge, vary your conditions, or negotiate a resolution, we will advocate for your rights every step of the way.
Schedule a Free Consultation with De Boyrie Law
If you are facing a breach of undertaking charge or are unsure about your legal obligations, contact De Boyrie Law for a free, confidential consultation. We will help you understand your rights and defend your case with the care and attention it deserves.
Alex De Boyrie is an experienced Criminal Defence Lawyer covering Toronto, and the Greater Toronto Area.
In short, Alex’s experience ranges from working on bail hearings, sexual offences, weapons and firearms, assault charges, drug offences, youth crimes, Impaired Driving, and other criminal offences.