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Breaches

Breaches

In criminal law “breach” is a broad term used to describe a situation where a person was under some kind of court or police order to do or not do something, and then went and did or didn’t do that thing. The courts take breaches very seriously. People who have not been involved with the criminal justice system are often surprised at just how seriously.

Here’s how it works.

If you are arrested, you may be held for a bail hearing to determine if you can be released and be at liberty while your matter proceeds through the criminal court system. Or, you may be released directly from the police station. Either way, there will be terms of release that you must follow. Those terms vary depending on the charges and the circumstances surrounding the charges. An example of a typical term that is part of the conditions of release for an individual charged with assault, is a term not to communicate directly or indirectly with the complainant.

Similar terms may be incorporated into a probation order as well. So someone convicted of an assault may, as part of the sentence, be subject to a period of probation, for example for one year, and that probation order will probably include terms not to communicate directly or indirectly with the complainant.

Whether these terms are part of a release or part of a probation order, the justice system takes breaches of such terms very seriously. People are often surprised at how hard the justice system comes down on a person charges with a breach. (Yes, “charged” – the breach is a new criminal charge, that will add to the person’s criminal record if the person is convicted of the breach.)

Let’s take an example. A person is charged with simple assault in a domestic partner situation. The facts are favourable in the sense that the assault was of a very minor sort and that, combined with other circumstances, leads the Crown to contemplate a non-jail sentence or maybe even a non-criminal conviction resolution. The accused person has the typical non-communication term in the terms of release. The matter takes the usual amount of time to progress through the court processes. A few weeks pass and things are going well with the case and it looks like it’s going to resolve well for the accused, with no jail and possibly even with no criminal record. Then one day the accused person sends a text to the complainant. This breach is reported and the accused person is charged.

For this breach, the Crown is seeking jail. Very often the penalty for such a breach starts at 30 days jail.

Another example might be where the person is convicted of the breach and goes to jail, but months later is cleared of the original charge of assault by winning at trial. The person now does not have a criminal record for the assault, but has gone to jail and has a criminal record for the breach. People are surprised.

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