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Breach of undertaking/recognizance (bail)

When a person is charged with a criminal offence and released from custody pending its disposition (bail), the person will be released subject to conditions. Conditions have full legal effect and must be complied with. Conditions are things that the accused must do or not do (depending on the condition) in order to stay out of custody.

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Breach of probation order (sentence)

Probationary orders are imposed by a judge as part of a sentence (after the accused has plead guilty or been found guilty after trial). They are intended to be rehabilitative, meaning, they are designed to help not to punish.
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Breach of undertaking/recognizance (bail) – Continued

Anyone who is “at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition,” of that undertaking, and fails without lawful excuse, “the proof of which lies on them, to comply with the condition, direction or order” is guilty of an indictable offence and is liable to imprisonment for a maximum of two years, or is guilty of an offence punishable by summary conviction (Criminal Code, s. 145(3)).

If the accused has been charged with a breach of recognizance, they may be held either until they are awarded bail, or until the charges they were originally facing have been settled, depending on the number of days until the court hearing. The severity of the breach and the resulting jail time may depend on how many times the accused has breached before, and the likelihood that they will breach conditions again if released once again. In the case of someone who has substance abuse issues, they may not be released until a proper plan for treatment has been put in place if the judge feels that it may be required in order to best prevent the accused from another breach of conditions.

Probation conditions exist until the end of the period of probation and are seldom varied.



Breach of probation order (sentence) – Continued

Probation conditions exist until the end of the period of probation and are seldom varied.

A probationer is supervised by a Probation Officer (PO). They have wide discretion and power to require the probationer to do certain things as set out in the probation order.

Failing to comply with probation is distinct from an undertaking or a recognizance but the effect is the same. It is a new criminal charge with the accused being arrested and in custody pending a new bail plan. Probationary orders range vastly in their duration, depending on the type of offence. The main goal is to prevent the convicted person from re-offending, and it will limit the person’s liberty in order to best achieve this.