Failure to Comply
Failure to comply is the general label for the criminal offence of breaching a court-ordered condition — most commonly under section 145 (release orders), section 733.1 (probation orders), or section 811 (peace bonds). Specific labels vary (failure to comply with release order, failure to comply with probation), but the underlying structure is similar: the Crown must prove an existing order, knowledge of it, conduct in breach, and absence of lawful excuse.
Mass Tsang's criminal lawyers handle breach files with attention to both the breach allegation and the underlying matter. For more, see our blog post on failing to comply with bail conditions.
Section 145 — release-order breaches
Section 145 criminalizes failing without lawful excuse to comply with a release order (bail) or to attend court when required. The Crown's burden is comparatively light: production of the release order, evidence the accused knew of it, evidence of the breach (often through police observation or third-party report), and the absence of lawful excuse. Mens rea is general — the Crown must prove the conduct was intentional, not that the accused specifically intended to breach.
Cascade effects of breach
Breach allegations have outsized procedural consequences. They typically trigger a fresh arrest, a new bail hearing — often on reverse onus under section 515(6) — and significantly harder release. They run alongside the original charges, doubling the litigation, and often harden the Crown's position on the original matters.
Judicial referral hearings
Bill C-75 introduced a judicial referral hearing process at section 523.1, allowing peace officers to refer less serious section 145 breaches to a judicial referral hearing rather than laying a fresh charge. The hearing can result in: no action; a variation of the existing order; or detention for a fresh bail hearing. The referral track avoids the cascade of fresh criminal charges in suitable cases.
Defences
Defences include: lack of knowledge of the condition (poorly explained at the original hearing, unclear language); impossibility (medical emergency, third-party interference); lawful excuse (genuine necessity); mistake about identity; ambiguity in the condition itself; and Charter issues with how the alleged breach was investigated.
Sentencing
Section 145 is hybrid. Summary maximum is 2 years less a day; indictable maximum is 2 years. Sentences are usually short but virtually always include some meaningful sentence component, particularly for repeat breaches. The bigger consequence is usually the impact on the underlying file.
Related glossary terms
