Failure to Comply with Undertaking
The offence of failure to comply with an undertaking is outlined in section 145(4) of the Criminal Code.
A person commits the offence of failure to comply with an undertaking when they are out of custody before trial on an undertaking, and fail to follow the rules of the undertaking, fail to appear at the time and place stated in the undertaking, or fail to attend court on the date specified in the undertaking.
An ‘undertaking’ is a promise the accused makes to the court to abide by certain conditions and to appear before the court when ordered to.
Person A makes an undertaking to attend court on a specific day but does not show up.
Person B makes an undertaking not to speak to person C, who person B had allegedly assaulted, while out of custody before their trial. Person B calls person C numerous times to try and get person C to drop the charges.
Person D makes an undertaking not to drive any vehicles while out of custody awaiting the resolution of their dangerous driving charges. Person D continues to drive their car to and from work.
R. v. Curnew, 2020 CanLII 94853 (NL PC)
In R. v. Curnew, the accused was charged with one count of failing to comply with an undertaking when he was released on an undertaking prohibiting him from communicating directly or indirectly with his spouse but later stood outside her home waiting for her to leave.
R. v. Robinson, 2020 NSPC 56
In R. v. Robinson, the accused was charged with one count of failing to comply with an undertaking when he stabbed his brother during an argument while on an undertaking to have no contact with him.
Offence Specific Defence(s)
Where the undertaking 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. Forgetting or being mistaken about the time or place to appear after making a reasonable effort to recall the proper time or place can also count as a lawful excuse in some cases.
Where the accused person has not breached any conditions of their undertaking, they will not have completed the offence of failure to comply with an undertaking.
For example, person A is out on bail for a domestic assault offence. A condition of his undertaking is not to contact the victim either directly or indirectly, except for the purposes of arranging for childcare of their two-year-old daughter. Person A contacts his ex-partner only for the purpose of arranging childcare. Person A has not completed the offence of failure to comply with an undertaking.