Fail To Comply, Breach & Related Criminal Offences

In almost all cases, a fail to comply charge is derived from an initial underlying charge.  An accused or offender had an underlying charge, for example a domestic assault and the failure to comply is a result of an alleged breach of conditions placed upon him/her. In a domestic assault charge the accused will usually have a bail/release condition to have no contact with the accuser (his/her partner) during the time that the charge is being processed through the courts. If the accused makes contact with the accuser during this time then he/she can be charged with failing to comply with conditions of his/her bail conditions which restricted any contact. At the conclusion of the underlying charge, say in this case, a domestic assault, the accused could be found not guilty of the charge and win the case.  However, if there was a fail to comply charge that arose after the initial charge but before it was over, the accused could still be found guilty of the fail to comply.  The failure to comply would be a separate additional charge. So the underlying charges and what happens to it (i.e., win or lose) really has no bearing on the separate failing to comply charge.

Another example of failing to comply would be if the accused was found guilty and given conditions of probation or signed a peace bond with restrictions. Some standard conditions placed upon the offender would be to abstain from contacting the victim (say again in a domestic assault case). If after the offender was sentenced and given such conditions he/she did contact the victim then that would likely constitute a failure to comply to with probation.  In Ontario, the terms “failure to comply”, “fail to comply” and “breach” are used interchangeably.  A related charge is failing to attend for court. This offence is also referred to as failure to appear. This charge occurs when an accused does not attend court for his/her scheduled court date. There is also a related charge of failing to appear for fingerprints.

The irony of failing to comply charges is that throughout Ontario, the penalties/sentences for failing to comply with a condition placed upon the offender sometimes are worse than what the sentence would have been for the underlying offence. For example, let’s say a first offender was charged with a fairly minor domestic assault and he/she was found guilty and received a conditional discharge (which is not a criminal record). In such a case, one of the conditions of his/her probation would be not to have any contact with the victim. If the offender breached the probation and failed to comply, then if he/she is found guilty of that offence, the sentence could be up to 30 days in real jail. While every jurisdiction is different, usually, Crown Attorneys and Judges are not too sympathetic when offenders breach their conditions on either their bail or probation orders. For example, with convicted impaired drivers in Ontario, there is a condition that the offender shall not operate a motor vehicle for at least 1 year.  Despite the severity of the offence of impaired driving, jail is rarely handed down to first offenders.  If the offender is then caught driving within that 1 year period, even if completely sober, a breach of probation has occurred, and the Crown Attorneys usually seek a minimum of 30 days in jail for that underlying charge. Clearly breaches and failing to comply with court orders are not taken lightly by the courts across the province of Ontario. If you find yourself charged with a failure to comply charge, please contact Baratz Law for a free confidential consultation.   

The recent Supreme Court of Canada decision in R. v. Zora in 2020 has established that one must have a clear intention to fail to comply with their bail conditions. See case below.

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