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Application - (Criminal Breach of Undertaking)



Criminal Undertakings, Breach of Undertaking

Application

Principles

It is "critical" that persons obey their conditions that they are bound by.   R. v. Bates, 2000 CanLII 5759 (ON CA)

The "administration of justice and the public's confidence in the administration of justice depends on compliance with such orders". When they are breached emphasis should be on general and specific deterrence.  R. v. Seaward, 2003 CanLII 43484 (NL PC) at 24 

 The judge should consider "general and specific deterrence and the need to protect the public from high-risk offenders ... were paramount." As well as proportionality, gravity and seriousness of the offence. R. v. Labbe, 2006 CanLII 36608 (ON CA)

Sentences for breach of court orders is a gradual process without a sudden, substantial increase in penalty. R. v. Murphy, [2011] N.J. No. 43 (C.A.) at 34.

Where a intimate partner is the subject of alleged violence the complainant has a right to be left alone by the accused. R. v. Denkers 1994 CanLII 2660 (ON CA), (1994), 69 O.A.C. 391, at p. 394

Breach should "be examined in light of the potential for the reasonably foreseeable consequences" of the conduct giving rise to the breach. This includes the offender's history. R v Helary, 2007 NLCA 47, 268 Nfld & PEIR 267 at para 16

The purpose of a s. 810 recognizance is to protect the public by preventing future criminal activity. R v Ballantyne, 2009 SKCA 27, 324 Sask R 71 at para 5.

Reference:
http://en.wikibooks.org/wiki/Canadian_Criminal_Sentencing/Offences/Breach_of_Undertaking,_Recognizance,_or_Probation


Criminal Code of Canada

145.
...
Failure to comply with condition of undertaking or recognizance
(3) Every person who is at large on an undertaking or recognizance given to or entered into before a justice or judge and is bound to comply with a condition of that undertaking or recognizance, and every person who is bound to comply with a direction under subsection 515(12) or 522(2.1) or an order under subsection 516(2), and who fails, without lawful excuse, the proof of which lies on them, to comply with the condition, direction or order is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction.

145.
...
Failure to comply with conditions of undertaking
(5.1) Every person who, without lawful excuse, the proof of which lies on the person, fails to comply with any condition of an undertaking entered into pursuant to subsection 499(2) or 503(2.1)
(a) is guilty of an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.
 733.1 (1) An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of
(a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding eighteen months, or to a fine not exceeding two thousand dollars, or both.
Where accused may be tried and punished
(2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.

Proof of Offence

In addition to the essential elements of time, location, and identity, the Crown should prove the following for each of the following offences:

145(3)

  1. that the Crown must prove that the accused was bound by an undertaking or recognizance;
  2. that the accused committed an act which was prohibited by the undertaking or recognizance or that the accused failed to perform an act required to be performed by that undertaking or recognizance; and
  3. that the accused had the appropriate mens rea, which is to say that the accused knowingly and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.[1]

  1. ↑ R. v. Custance 2005 MBCA 23 at 10 [1]

145(5.1)

  1. that the accused was subject to an undertaking to an officer in charge pursuant to s.499 (under an arrest warrant) or 503(2.1) at the time of the offence;
  2. that the accused committed an act which was prohibited by the undertaking or that the accused failed to perform an act required to be performed by that undertaking;
  3. (mens rea) the accused knowingly and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.

733.1

  1. the accused was previously convicted of an offence for which the sentence included a period of probation
  2. the accused was bound by the probation order at the time
  3. that the accused committed an act which was prohibited by the probation order or that the accused failed to perform an act required to be performed by that probation order; and
  4. the accused knowingly and voluntarily performed or failed to perform the act or omission which constitutes the actus reus of the offence.

Interpretation

The Crown must prove that the accused intended to breach his probation conditions. This means the accused must have known that he was bound by the probation order as well as the terms of the order. The mens rea of the offence can be satisfied by an "objective recklessness".
If the breach is for the failure to pay restitution, the failure to make the payments in and of itself is prima facie evidence that the accused intended not to pay.[1]
Previously, breaches required wilful intent. This was inferred from the facts.[2]
In proving the existence of a probation order, an original certified copy of the order may be submitted as an exhibit without notice at the common law.[3] This is likewise the case in proving an order of disqualification from driving.[4]

  1. ↑ R. v. Sugg, 1986 CanLII 124 (NSCA)
  2. ↑ R. v. Docherty, [1989] SCR 941, 1989 CanLII 45 (SCC)
  3. ↑ Lebreux [1993] N.W.T.J. No. 97
  4. ↑ R. v. Tatomir, 1989 ABCA 233

Keep the Peace and be of good behaviour

The condition to "keep the peace and be of good behaviour" contemplates two different types of offences. The provision to "keep the peace" is separate from the condition to be of "good behaviour".[1]
Disorderly conduct that violates public peace will amount to a breach of the "peace".[2].This does not however include cursing or swearing at police.[3]
The term "be of good behaviour" means that the person must comply with federal, provincial, municipal statutes or regulatory provisions as well as court orders.[4]
There is some dispute over whether breaching "good behaviour" requires breach of law or regulation . There is a line of cases that says you must have a violation.[5] While others state that there in no such limitation.[6]

  1. ↑ R. v. Steele at p. 256
  2. ↑ R. v. Badenoch, [1969] BCCA;R. v. S.S. 1999 NfldCA; ; R. v. Gosai [2002] O.J. No. 359 (S.C.J.)
  3. ↑ R. v. Shea, 2010 NSPC 70
  4. ↑ R. v. R. (D), 1999 CanLII 13903 (NL C.A.) [2]; R. v. Grey 1993 Ont Ct. Prov. Div.
  5. ↑ R. v. R.(D.) 138 CCC 3d 405 (NFCA);
    R. v. Grey (1993) 19 CR 4th 363 (Ont.);
    R. v. Barker (1967), 3 C.R.N.S. 58 (Y.F. Mag. Ct.)
  6. ↑ R. v. M.(S.A.M.) [1994] SJ No 537 (SKPC);
    R. v. Johnson (1993), 90 Man. R. 2d 43
    R. v. Steele

Forgetfulness

Forgetfulness has been successful as a defence to the reporting condition for probation.[1]

  1. ↑ R. v. Bremmer, 2006 ABPC 93 [3]

Contact/Communicate/Associate

Smirking and extending a middle finger was found to amount to contact with a complainant.[1] The purpose of the communication has no bearing on the meaning of "communication" in the offence.[2]

  1. ↑ R.v.Dupuis, 2006 NSPC 66
  2. ↑ R.v.F.(J.) [2001] O.J. No.2054

Case Digests

  • R. v. R. v. Josephie, 2010 NUCJ 7 [4] -- failing to appear
  • R. v. Tan, 2010 ABPC 163 [5] -- acquittal for breach of curfew; de minimus principle
Example Case

R. v. Josephie, 2010 NUCJ 7 (CanLII), <http://canlii.ca/t/2b6zf>
III.  THE SUBJECTIVE FAULT ELEMENT

[10]  The severity of the criminal law has long been reserved for those who choose to commit criminal acts. It is reserved for those who deliberately and consciously undertake a risk that results in a prohibited consequence occurring. Punishment for crime is a consequence that is earned by a conscious decision to do, or not do, an act that is legally blameworthy.

[11]  The criminal law does not inflict punishment for acts that are unintended, or for consequences that are unforeseen and unforeseeable. We are punished for the wrong choices we make, and the wrongs we do as a consequence of these choices.

[12]  For hundreds of years, criminal liability has been contingent upon proof of the commission of a criminal act by a person having a criminal state of mind. It is this criminal state of mind, the conscious thought process behind the act, that clothes the criminal offence with moral blameworthiness. It is this blameworthiness that serves as the philosophical justification to impose punishment for a crime.  

[13]  This is why we do not gaol the mentally ill. When for reasons beyond their control, a citizen cannot make reasoned decisions or distinguish right from wrong, there can be no moral justification to punish. This is why we do not use the criminal sanction on the very young. The young child’s immaturity, lack of judgment and inexperience renders the very young child incapable of making the reasoned choices that are necessary to trigger the criminal sanction. Society can still protect itself, but it must use means other than the criminal sanction to do so.

[14]  The criminal standard, this dual requirement of a criminal act joining with a criminal state of mind, is deeply embedded in common law jurisprudence that is of ancient and hallowed origin.

IV.   THE REGULATORY OFFENCE

[15]  The modern regulatory offence was born from the need to regulate the sophisticated social and economic activities of an industrialized urban society. The law has evolved to meet the increasingly complex demands and accelerating pace of the modern world. The social objectives underlying the regulatory framework and its offences are different from those applied by the criminal law.

[16]  While the criminal standard ordinarily requires that the act be the product of deliberate thought and action, the regulatory offence imposes punishment without proof of an accompanying intention to commit an offence. Liability flows from the doing of the act unless the accused can demonstrate that he or she was reasonably diligent in trying to avoid the prohibited consequence.

[17]  The fault element of the regulatory offence does not focus on what was actually in the accused’s mind, but with what should have been there, had the accused proceeded reasonably. It is the lesser legal penalty, the lower moral stigma and compelling need to regulate an economic or social activity in the public interest that justifies this lower standard. The regulatory offence thus assigns liability on an objective, as opposed to subjective basis. Negligence, or a lack of reasonable diligence, becomes sufficient in law to establish liability.

[18]  The Crown argues that the failure to appear offence should be interpreted as incorporating an objective fault element akin to that associated with the regulatory offence. This Court is urged to follow the interpretation advanced by the BC Court of Appeal in R. v. Ludlow (1999) BCCA 365. It is said that the failure to appear offence is quasi-regulatory in nature because it seeks to regulate conduct and prevent harm to the administration of justice.

[19]  If an objective standard is to be applied to the mental element, then it is said by the Crown that Mr. Josephie was not reasonably diligent when he missed court and he should be convicted on this basis. In the alternative it is argued that Mr. Josephie’s admitted conduct amounted to either willful blindness or recklessness, and he should still be convicted.

V.   ANALYSIS

[20]  The offence of failing to appear in court is found in the Criminal Code of Canada. Where the Crown proceeds summarily, it is punishable by up to 6 months imprisonment. Where the Crown proceeds by indictment this offense is punishable by up to two years imprisonment. A conviction recorded for this offence creates a criminal record that can only be purged through a pardon obtained under the Criminal Records Act. This is an offence that disrupts the administration of justice. This is an offence that interferes with the court’s ability to control its own processes.

[21]  In recognition of the impact that this offense has on the administration of justice, Parliament has created a sanction that includes the potential for a significant loss of liberty up to and including a penitentiary term. The type and length of sanction provided for this offence suggests that Parliament intended this offence to be a  true crime requiring proof of a subjective criminal intent.

[22]  The Criminal Code is a penal statute. Its statutory provisions should be narrowly construed in favour of the liberty of the subject. This approach to the interpretation of penal statutes is well entrenched in common law jurisprudence extending back in time to medieval England. Parliament is deemed to be aware of common law jurisprudence that ordinarily requires a subjective mental element to be present for criminal offenses where there is potential for a significant term of imprisonment.

[23]  Parliament may chose to modify the criminal standard, subject to Charter considerations. Such an intention should be expressed clearly however. It should not arise by subtle implication. This approach best ensures that the civil liberties underlying section 7 of the Charter are not gradually eroded or undermined by ambiguous legislative language.

[24]  The introduction of an objective fault standard might make for a more efficient criminal justice system, but such a system would not necessarily achieve greater justice. Such efficiency would undermine the  philosophical underpinnings upon which the criminal justice system is built. It would confuse society’s  rationale for the punishment of crime. 

[25]  An objective mens rea requirement would criminalize the behaviour of a wide range of citizens who are challenged by mental disabilities and psychological and psychiatric disorders.  The objective standard of reasonable diligence would cast its net broadly. Many disadvantaged individuals, including those afflicted by Fetal Alcohol Spectrum disorder, would not likely measure up to such a standard.

[26]  Parliament has expressly created a lower fault standard for the offences of dangerous driving, and careless use, careless storage of a firearm. Parliament has not done so for the offence of failing to appear in court. Given the serious consequences associated with conviction, this Court is not prepared to read into the language of the charging provision found in section 145(5) any legislative intention to replace the subjective fault element with the standard ordinarily reserved for a regulatory offence. This Court declines to follow the BC Court of Appeal’s decision in Ludlow to find that there exists an objective mens rea requirement for the offence of failing to appear. 

[27]  The wording of the charging provision found in section 145(5)  does not change the criminal standard requiring subjective intent. It supplements it.  

[28]  The question of whether an accused has a “lawful excuse” only arises after the Crown has proven beyond a reasonable doubt both the criminal act requirement and the subjective mental requirement that underlies all true criminal offences. Once the criminal act and intent are proven beyond a reasonable doubt, an accused may chose to call evidence and establish upon a balance of probabilities that he or she had otherwise a lawful excuse for their failure to appear.

VI.   CONCLUSION

[29]  Mr. Josephie may have been negligent in not taking reasonable steps to remember his court date. However, this is not the test for criminal liability. His stated reasons for failing to attend court are not seriously challenged by the Crown. Mr. Josephie was not shaken in cross examination. The only evidence before me is that he did not address his mind to his court obligations at all in the wake of a profound personal tragedy.

[30]  On this evidence, Mr. Josephie cannot be found to be either reckless or willfully blind. A finding of recklessness would be contingent upon there being evidence that Mr. Josephie had addressed his mind to the risk that he would miss court, and he consciously chose to take a chance. This is not the evidence before me.

[31]  A finding of willful blindness would require a finding that this accused deliberately avoided inquiry about his court date knowing that it was probable that he would fail to appear in Court as required. Once again, this is not the evidence before me.

[31]  The Crown has failed to prove beyond a reasonable doubt that this accused had the requisite intent required by law for this crime of failing to appear. He must therefore be found not guilty.

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