Whether you or someone you know is on bail or subject to a probation order, it is important that you understand all of the conditions and that you fully and completely comply with these conditions. Failing to comply with either a term of bail or a probation order is a criminal offence and, if arrested, will result in you being detained pending the outcome of a bail hearing, where the onus will be on you to establish why you should be released from jail.
While there are some individuals who are quite aware they are breaching their bail or probation, there are many other individuals who are not aware that they are breaching one or more of the conditions they are required to abide by until it’s too late and the police are there to place them under arrest. Still there are other individuals who are not aware that their conduct is assisting or aiding another person in breaching that individual’s terms of bail or probation order. It may even surprise you to know that, although unlikely, you could be charged with being a party to an offence of an individual who is charged with failing to comply with the terms of bail or a probation order.
It is for the reasons outlined above that it is essential you understand the conditions of your term of bail or your probation order. Likewise, if you are acting as a surety for someone, it is important that you understand the bail conditions for the person who you are acting as a surety for and that you ensure that person is complying with every one of those conditions.
A common example of where a person is charged with failing to comply with a term of bail or a probation order is when that person has communication with an individual whom he or she is ordered not to have any direct or indirect communication with. If you are subject to a condition not to communicate directly or indirectly with another person, you must apply the strictest interpretation of this term to ensure you do not create a situation that would lead to being arrested and charged with failing to comply.
In the world we live in today, posting a message on Facebook may constitute violating the condition not to communicate directly or indirectly with another person. Think about it, if you were to post a message on Facebook about that person or make a comment that is specifically directed at that person; that alone would constitute a form of communication. If the person who you are not to have communication with (spouse, partner, girlfriend/boyfriend, friend, colleague, classmate, etc.) is friends with you on Facebook and reads the message, you have now communicated indirectly with that person.
A more common example of breaching a no communication order occurs in cases involving an allegation of domestic assault where the person on bail uses a third party, often another family member, to send a message to his or her spouse or partner. In this example, you need to be careful even if you are the third party who is passing along the message. Although it is unlikely, if you are the third party in these circumstances you could be charged with being a party to an offence as you have assisted a person in failing to comply with their term of bail. The fact that the police often do not charge the third party in these circumstances does not mean that the police cannot and will not charge you.
Another example of failing to comply in a domestic assault case occurs if your partner were to call you and to tell you things such as they do not want to proceed with the charge, they want to resume the relationship, or they are consenting to you communicating with them. The fact that the named person who you are not to communicate with initiates contact with you is not a defence if you continue to engage in communication with him or her. Do not rule out the possibility that a person whom you are not to have any communication with contacts you or invites you over with the sole purpose of calling the police and having you charged with failing to comply.
Failing to comply with a term of bail or a probation order is taken very seriously by our courts. If you are out on bail and you are subsequently charged with failing to comply, you can expect to be held for a bail hearing, either that day or the following day, depending on the time of day you are arrested. Similar to being charged with failing to comply with a bail condition, if you are charged with failing to comply with a probation order you can expect to be held for a bail hearing.
In circumstances where you are charged with breaching bail or probation, there will be a reverse onus on you to establish on a balance of probabilities that you should be released pending the outcome of the charges against you. In these circumstances it can be difficult to negotiate your release, as it is unlikely the Crown Attorney will consent to you receiving bail again. If your surety did not do everything that would be reasonably expected of him or her to prevent you from breaching your bail, you can expect that the Crown Attorney and the Justice of the Peace will want a different person to act as a surety before they are will to consider releasing you on bail.
If you are released again on bail, whether it is a separate bail or you are put on one global bail, you can expect stricter bail conditions. You should also be aware that a conviction for failing to comply with a probation order is an offence that can attract a short term jail sentence.
I am a criminal defence lawyer in Toronto and as such I see all sorts of bail and probation conditions, many of which are standard conditions, however there are other conditions that are unique to a person’s circumstances. As a criminal lawyer I come into contact with individuals who have been charged with failing to comply with their terms of bail or probation order.
Do not hesitate to ask me to explain your terms of bail or your probation order in entirety. If you have any questions about bail or probation orders, or you have a question about another criminal matter, contact me today.
Read more about failing to comply with bail conditions and breach of probation.