Criminal Undertakings, Breach of Undertaking

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A criminal undertaking is a common tool used in New Brunswick to compel accused persons to attend court and abide by specific conditions while they await trial. Criminal undertakings are the alternative to the accused having to wait in jail for their matter to be resolved. Lawyers frequently bargain for their clients to be released on an undertaking instead of having to spend time in custody prior to trial (and for agreeable undertaking conditions).

Breaching a Criminal Undertaking is an Offense

Agreeing to abide by the conditions of an undertaking is a serious matter. If you are found to be breaching the terms, you can be charged with the criminal offense of breech of undertaking. As many undertakings have several conditions, it is not uncommon for individuals to be charged with multiple breeches for a single incident.

Charges of breech of undertaking are common in Canada and often used in the bargaining process when working out an agreement to a guilty plea with the prosecutor.

The conditions of a criminal undertaking usually relate to the facts of the crime itself and are designed to prevent subsequent incidents while the accused is awaiting trial in the community.

Typical conditions include:

1) Avoid drugs or alcohol;
2) Avoid attending places where alcohol is the principle product sold (clubs, bars, etc.);
3) Avoid direct or indirect contact with a specific person (usually the alleged victim of the threat or assault) – sometimes this comes with a clause “except through legal council”;
4) Avoid contact with persons who have a criminal record;
5) Avoid attending a specific place or residence;
6) Avoid leaving the province;
7) Curfews relating to specific times;
8) Attend court at a specific date and time;
9) Keep the peace and be of good behaviour.

Undertakings are typically issued by the police or the courts themselves. When an arrest is made, the police will normally transport the accused to the police station and then release them on an undertaking.

The police may also choose to hold the accused in jail for up to three clear days for an appearance before a judge or justice. Sometimes the undertaking is only provided after this initial court appearance.

How to vary a Criminal Undertaking

Undertakings can always be varied (changed) by a judge at the request of the prosecutor or the accused. An accused always has a right to apply to the court to vary an undertaking. Normally, the client's lawyer will attend to the courthouse to schedule court time for the application to be heard. When you are scheduled court time, you will appear in provincial court and ask the judge to vary the terms.

The best way to have an undertaking varied is with the consent of the prosecution. If you can, try to speak to the prosecutor beforehand and explain your reason for varying the undertaking. The prosecutor may be reluctant to speak with you, however they may talk to you at the courthouse on the day of court or prior to that at a scheduled meeting. If you have the prosecutor's consent, it is much more likely the judge will agree to the variation.

Even if the prosecution does not consent to a variation, you have a right to tell the judge why you believe a variation is reasonable. You will need to have a valid reason for doing so.

Here are some examples of common valid and invalid reasons:

Condition: “Avoid alcohol”
Good reason: Alcohol was not involved in the crime and there is no evidence of a substance abuse problem.
Bad reason: Alcohol was involved in the crime and accused just simply wants to drink.

Condition: “Avoid contact with the victim”
Good reason: Accused needs to make contact with the victim for the purpose of facilitating access to a child of the marriage.
Bad reason: Accused wants to apologise and attempt to "make up" with the victim.

Condition: “Avoid leaving the province"
Good reason: Accused needs to leave the province because of a work opportunity that is not available locally.
Bad reason: Accused wants to leave town to avoid the stigma of being charged.

Common Conditions of an Undertaking

Keep the peace and be of good behaviour

This is a standard clause that is included in virtually all undertakings. It is designed as a general catch all to prevent the accused from engaging in problematic or criminal behaviour.

The inclusion of this condition means that if the accused is charged with breaching the undertaking, there will likely be a minimum of at least two counts. It also ensures any new charges will also result in a breech of undertaking charge (even if unrelated to the undertaking or the original offense).

Avoid Alcohol or non-prescription drugs

Undertakings commonly have an avoid alcohol clause if the accused was intoxicated at the time of the offense. Otherwise, such a clause is generally considered inappropriate. Some defendants are forbidden from drinking alcohol even if the charges relate to a minor common assault or threat utterance.

In addition to banning the drinking of alcohol, the undertaking may also prevent the accused from attending places where “alcohol is sold as a principle product”. This makes it illegal for the accused to go to bars or clubs. If, for example, the accused comes in contact with police at a bar while the undertaking is in place, he will likely be charged with breech of undertaking.

Even if the original charges (perhaps an assault or threats charge) wind up being dropped, or the accused is found not guilty, he may still end up with a criminal record by being convicted of the breech of undertaking charge.

Avoid direct and/or indirect contact with the victim

This condition will most likely never be varied without the consent of the victim. The problem is that technically the accused should have no way of knowing if the victim wants contact since they are obligated to avoid “direct and indirect contact” with the person to begin with. Sometimes there is an exception clause that states “except through legal counsel”, which perhaps affords the opportunity for the accused to learn the victim wants contact.

Gaining contact with the victim is a common request of couples in domestic disputes who call the police on each other in the heat of the moment. Someone winds up charged and placed on an undertaking. After a few days and the parties “cool down”, they want to resume their relationship.

The problem is they are forbidden by the criminal undertaking from all contact until the matter is resolved in court (which could easily take a year or more). Even if the domestic charges are eventually dropped, breeches of the undertaking could result in findings of guilt (and the accumulation of a criminal record).

Exceptions for children

If there are children involved, this may provide reason for the undertaking to be varied to allow for limited, specific contact with the spouse (victim). If the children were not present during the alleged offense, and the court does not feel they are at risk, and they have the consent of the victim, contact may be permitted for the specific purpose of access to the children.

Avoid attending a specific place

This is a common condition of undertakings. In cases of domestic assault and threats charges, where the undertaking also forbids contact with the spouse, usually the clause to avoid attending the place of residence is also included.

In cases arising from crimes committed in places of business (malls, stores, nightclubs, bars, etc.), usually the address of that business is included. In cases involving children, undertakings will typically forbid the accused from being around children of a certain age or going to places where they normally congregate (schools, playgrounds, etc.).

In order to vary these clauses, there must be a highly valid reason. Sometimes permission is granted but only for a specific time and purpose. For example, if the charged spouse is forbidden from attending his home, where his spouse/wife who is listed as the victim lives, he may be permitted to attend the residence on a specific date of time to gather essential personal belongings (clothes, medication, etc.).

He may also be granted permission to attend the residence on a specific date and time for the purpose of exercising access to the children.

Avoid leaving the province

This clause is usually included to ensure the accused shows up for court (or is locatable in the instance that they don’t). It is possible to vary this undertaking with the court’s permission and it is typically done for reasons of employment.

For example, if the undertaking forbids the individual from leaving the Province of New Brusnwick and he finds a job in Alberta, he can apply to the court to vary the undertaking to allow him to go to Alberta for work. It is also possible to vary the provincial requirement for purposes of general travel if the court deems it reasonable in the circumstances.

Factors that the court will look at usually include the location of the victim, the history of the accused, the purpose of the travel, possible risks to third parties, and the seriousness of the crime.

Curfews

Curfew clauses are common for youth offenders, but are sometimes imposed on adults as well. The most common reason for varying a curfew clause is to attend work. Courts generally dislike placing the accused in circumstances that make it difficult for them to earn a living.

In the case of youth offenders, the courts will usually look for the permission of the parent or guardian (meaning they show up to court and tell the judge – or speak to the prosecutor beforehand), and a work related reason before they agree to vary a curfew clause.

Avoid contact with the co-accused or anyone with a criminal record

Undertakings also may forbid the accused from any direct or indirect contact with other people involved in the crime or, generally, anybody with a criminal record.

Meaning of Direct or Indirect Contact

Undertakings specify that the accused is to have no "direct or indirect" contact with a specific person. Indirect contact normally refers to contact through a third party (getting someone else to deliver a message to the person for them), though other forms of indirect contact are also imaginable (through the use of broadcast media, for example).

Sometimes undertakings will add the clause "except through legal council" to allow the accused's lawyer to contact for the victim on the accused's behalf.