Failing to Comply and Breach of Probation

Why You Need A Lawyer

Failing to comply with a probation order is a criminal offence taken seriously by our courts. A conviction for  failing to comply with a probation order sends a direct message to the courts, the police and the Crown Attorney that you have no regard or respect for orders made by criminal courts. When you hire me, I will review your case and advise you on the likelihood the Crown Attorney can prove its case against you and what defences may be available to you. Remember, you should never plead guilty to a criminal offence unless there is a factual basis for entering a guilty plea, the Crown Attorney can prove its case beyond a reasonable doubt, and you receive some consideration in return for entering a guilty plea.

Elements of the Offence

Pursuant to section 733.1 of the Criminal Code of Canada it is offence for failing to comply with a probation order. There are main two elements that constitute an offence of failure to comply with a probation order; the first being that the person must be bound to a probation order, and the second element being that a person, without reasonable excuse, either failed or refused to comply with the probation order.

Without Reasonable Excuse

There was a time when the Crown attorney had to prove that you wilfully breached a probation order. The section now reads that a breach of a probation order only requires that you did not have a reasonable excuse when you violated the probation order. Simply put, the term “without reasonable excuse” means that the Crown Attorney does not have to prove that you wilfully failed or refused to comply with a term of the probation order. Where a person has committed an act that amounts to either failing or refusing to comply with a term of probation and that person does not have a reasonable excuse, then this element of the offence has been met.

Penalty for Breaching a Probation Order

Failing to comply with a probation order is a hybrid offence, and upon conviction a person is liable to a maximum penalty of 18 months imprisonment and/or to a fine not exceeding $2,000 for a summary offence. When the Crown has proceeded by indictment, a person is subject to a maximum penalty of 2 years imprisonment.

Defending a Charge of Failing to Comply with a Probation Order

The Crown Attorney must first prove that there is a legal probation order in effect and that you are in fact the person who is subject to that probation order. The Crown Attorney must also prove that your actions where in violation with your probation order.

Although ignorance of the law is not a defence, there are some circumstances where your actions may constitute a reasonable excuse for failing to comply with a probation order.