When defendants are released on bail in Ontario, a series of conditions are usually applied to the release. Conditions may also apply to releases on an undertaking to a police officer, probation order or peace bond.
Failure to comply with these conditions can lead to more serious consequences (potential jail time) and a further criminal charge. Defying a court order is a serious offence in itself, and there are few circumstances where a defendant will be treated leniently in such cases.
Those found guilty of failure to comply will also find it more difficult to secure a release if arrested and charged in the future.
It is possible, however, to build a powerful defence to the charge and mitigate the consequences of a bail violation — with the assistance of an experienced criminal defence lawyer.
What must the prosecution prove for a conviction for a bail violation?
There are three elements to proving a failure to comply with bail conditions:
- The defendant was bound to follow the condition set out in the bail order
- The defendant breached the condition set out in the order, and
- The defendant intended to violate the bail condition
So, an important element of a bail violation is intention. That means an accidental breach of the conditions would not be enough to secure a guilty verdict.
For instance, if one of the conditions of bail was to not possess a firearm but someone planted a small gun in the defendant’s jacket pocket when he/she wasn’t looking, an accidental breach of conditions could be argued.
Another example might be if your bail conditions stated that you must attend a course on Saturday but you got the date wrong and showed up on Sunday.
The need for intentionality provides some scope for a seasoned criminal defence lawyer to build a defence.
Are there ever good reasons for a bail violation?
Another possible defence to a bail violation is that the defendant couldn’t comply with the conditions of release.
Though rare, there are certain circumstances where this can apply. A good example would be a medical emergency, where the defendant had to go to the hospital in the middle of the night but, under the terms of his bail, was not permitted to leave home after 10 pm.
Generally speaking, if (on the balance of probabilities) a reasonable excuse is offered for the breach of the terms of bail, it would be impossible to hand down a guilty verdict for failure to comply.
Learn More → What will happen if I can’t afford bail in Ontario?
Should you just plead guilty to a bail violation if you don’t have a valid excuse?
Proving a violation of bail conditions is rarely straightforward for the Crown in Ontario, especially if you have representation from a competent lawyer. Cases may hinge on unreliable witness testimony or a lack of the correct documents.
Making it easy for the prosecution by pleading guilty is rarely the best move. Not only can it lead to jail time (even for a first offence) but you will also be saddled with a criminal record for the rest of your life.
It can also be a significant factor in denying bail for a future offence because you will be viewed as a person who cannot be trusted to follow court orders.
Before pleading guilty, a criminal defence lawyer should review the evidence to determine if there are valid defences for your actions.
Can you be found guilty if your constitutional rights were violated?
If you were the subject of an unconstitutional search when the police discovered that you had breached your bail conditions, it can serve as a defence against a bail violation.
Under the Canadian Charter, every citizen is entitled to rights that prevent the police from the following:
- Searching you in an unreasonable way
- Using excessive force against you
- Detaining or arresting you without a good reason
They must also help you contact a lawyer if you want one and explain why you’re detained or arrested.
So, even if you’re doing something that is prohibited by the terms of bail, the police must have a legal basis for detaining and questioning you. Otherwise, any evidence retrieved may be inadmissible in court and the judge may have no choice but to find you not guilty of a bail violation.
What are valid defences for a bail violation charge?
We’ve touched on these above but, to summarise, the following defences may be available to you for a bail violation charge:
- Your Charter rights were violated
- You made an honest mistake and forgot to follow the rules (it must be an intentional breach of conditions)
- It was impossible to comply with your bail conditions (for instance, due to an emergency)
If the Crown cannot prove all of the elements of the alleged crime beyond a reasonable doubt, you cannot be found guilty of a breach of bail.
What will happen with a bail violation charge in Ontario?
Your bail violation case will result in one of the following outcomes:
- The Crown withdraws or stays your charges
- The judge dismisses your charges
- The judge sentences you after you plead guilty
- The judge sentences you after you’re found guilty at a trial
- The judge or jury finds you not guilty at a trial
To decide on the best course of action, it’s important to discuss your case with a criminal defence lawyer as soon as possible after you are charged. If you are accused of a bail violation, it means you already have a criminal charge pending, so you may already have hired a lawyer.
In most cases, pleading guilty is not recommended, as other options will be available. An experienced lawyer will liaise with the prosecution outside of the courtroom and explore the possible legal avenues open to you.
If you have been arrested and charged with any criminal offence in Ontario, contact an experienced criminal lawyer at Affordable Defence for a free case evaluation.