Failure to Comply with an Order

Failure to Comply with an Order

The offence of failure to comply with an order is outlined in section 145(5) of the Criminal Code.

A person commits the offence of failure to comply with an order when they are out of custody before and fail to comply with any condition of their release order, other than the condition to attend court.      

A person also commits the offence of failure to comply with an order where they breach a court order instructing them not to communicate with a specific person.

Examples

Person A is released from custody before their trial with a condition that they must live with their surety, who is person B. Person A instead moves in with person C.

Person D is arrested for possession of a firearm and released from custody pending trial with a condition not to possess any firearms. However, person D keeps a loaded firearm on her person at all times.

Cases

R. v. Navas, 2022 ONCJ 153

In R. v. Navas, the accused was charged with one count of failure to comply with a release order when he went to the address of the complainant in his assault case. His release order instructed him not to have contact of any kind with the complainant. 

R. v. J.R., 2022 ONCA 152

In R. v. J.R., the accused was charged with one count of failure to comply with a release order when he breached the term in his release order that required he remain in his home between the hours of 10:00 pm and 6:00 pm unless he was with his surety. He was arrested after a police officer caught him driving alone at 1:00 am. 

Offence Specific Defence(s)

Lawful Excuse

Where the release order is breached for a lawful excuse, the person will not have committed the offence of failure to comply with an order. A lawful excuse includes a medical emergency or a threat to life.

No Breach

Where the accused person has not breached any conditions of their release order, they will not have completed the offence of failure to comply with an order.

For example, person A is out on bail for a child pornography offence. A condition of his release order is not to access the Internet except in the direct presence of his surety. If person A is charged with breaching this condition but can prove that every time he accessed the Internet he was in the direct presence of his surety, he cannot be convicted of failure to comply with an order.

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