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Charged, or someone you know
A breach is a new charge in its own right, not a warning on the old one.
Breach Charges. Probation, Bail And Reasonable Excuse
A breach charge does not require any new offence against another person. It requires proof that you failed to comply, and that you had no reasonable excuse. Both parts matter.
Section 733.1 of the Criminal Code requires proof beyond a reasonable doubt that the accused failed or refused to comply with a probation order without reasonable excuse. The excuse is not an afterthought; it is part of the offence.
Breach Charge Defence
733.1CC
Breach of Probation Provision
4Years
Maximum by Indictment
145CC
Failure to Comply With Release
523.1CC
Judicial Referral Hearing
Quick Answer
What should I do if I have breached my probation or bail conditions?
Contact a lawyer immediately, and if you are on probation, contact your probation officer to explain and document what happened. Do not wait for the breach to be discovered. Gather anything that supports a reasonable excuse, such as medical records or work schedules, and ask counsel whether the condition itself can be varied going forward.
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THE OFFENCE
What a Breach Charge Requires
Section 733.1(1) of the Criminal Code makes it an offence for a person bound by a probation order to fail or refuse to comply with it without reasonable excuse. It is a hybrid offence: on indictment the maximum is four years imprisonment, and it may also be prosecuted by summary conviction. A separate provision, section 145, covers failure to comply with a release order, an undertaking or a summons, and failure to attend court.
These are called administration of justice offences because the alleged wrong is against the order itself, not against a person. That does not make them minor. A breach conviction records a failure to follow a court order, it is treated seriously on any future bail hearing, and it can undo a resolution that had been carefully arranged on the underlying charge.
The Crown must prove four things beyond a reasonable doubt: that a valid order existed, that you had knowledge of the condition alleged to have been breached, that you failed to comply with it, and that you did so knowingly or recklessly and without reasonable excuse. Each of those is contestable, and breach prosecutions fail on all four.
PROBATION VERSUS RELEASE
Two Different Kinds of Order
Feature
Probation order
Release order or undertaking
When it applies
After a finding of guilt, as part of a sentence
Before trial, while the charge is outstanding
Governing provision
Sections 731 and 732.1, breach under section 733.1
Sections 493 to 515, breach under section 145
Maximum term
Three years
Until the charge is resolved
Typical conditions
Keep the peace, report to a probation officer, counselling, no contact, community service
Reside at an address, curfew, no contact, no weapons, report to police
Maximum on the breach by indictment
Four years
Two years
How it can be changed
Application to vary under section 732.2(3)
Variation on consent, or bail review under section 520
Effect of a breach on the original matter
Probation may be varied; the original sentence is not reopened
Bail may be revoked and the accused detained pending trial
A conditional sentence order is different again. Breaching one is dealt with under section 742.6 as an allegation before the sentencing court, on a balance of probabilities, rather than as a fresh criminal charge, and the court may order that part or all of the remaining sentence be served in custody.
DEFENCES
Reasonable Excuse and Knowledge
The phrase without reasonable excuse is part of the offence, so the Crown must prove the absence of one beyond a reasonable doubt once the issue has an air of reality. What counts as a reasonable excuse depends on the condition and the circumstances. A missed reporting appointment because of a hospital admission, a documented transit failure, a curfew breach caused by a medical emergency, an inability to pay a fine or complete community service due to genuine financial hardship or illness, or contact initiated by the other person in circumstances the accused could not control, are all capable of amounting to one.
Knowledge is the other frequent issue. The Crown must prove you knew of the condition. Orders are sometimes varied without the person being properly notified, conditions are sometimes read out at speed at the end of a long day in bail court, and probation orders are sometimes not served on the person at all. Where an accused genuinely did not understand or was never told, the mental element is missing.
Beyond that, the ordinary defences apply. Identification can be in issue where a curfew check was answered by someone else. Ambiguity in the wording of a condition is construed against the Crown. Officer-imposed conditions that exceed what the order actually says are not conditions at all. And Charter issues arise here as elsewhere, including whether a compliance check at a residence had lawful authority.
If you have breached, or think you might
Do not wait for it to be discovered. Contact your lawyer, and if you are on probation, contact your probation officer to explain and document the circumstances. Where a condition no longer fits your life, because your work hours changed, you moved, or a treatment programme conflicts with a curfew, the order can be varied on application under section 732.2(3), or for a release order on consent or by bail review. Varying a condition in advance is straightforward. Explaining a breach afterwards is not.
RESOLUTION
Judicial Referral and Other Routes
Since 2019 the Criminal Code has offered an alternative to prosecuting minor administration of justice offences. Section 523.1 allows a Crown, instead of proceeding with a charge under section 145, to refer the matter to a judicial referral hearing where no harm was caused to a victim. At that hearing the court may take no action, release the accused on a new order, or detain them. No conviction results and no criminal record is created. It is an important option and it is worth asking about.
1
Arrest or summons on the breach
A breach may lead to arrest, and where the underlying matter is still before the court, to a fresh bail hearing that may now be a reverse onus.
2
Disclosure
Counsel obtains the order relied on, proof of service or the transcript showing the conditions were communicated, the probation file, and the notes of the compliance check.
3
Assessment
Was there a valid order, was it known, was it breached, and was there a reasonable excuse. Documentation of the excuse is gathered at this stage.
4
Resolution or trial
Options include a judicial referral hearing, withdrawal, a variation of the underlying order, a plea with a modest sentence, or a trial on the elements.
Where a breach charge cannot be avoided, sentences at the lower end include a fine, a short probation term or a suspended sentence, particularly where the breach was technical and no one was put at risk. Where the breach involved contact with a protected person, courts respond much more firmly, and that is the situation in which early legal advice matters most.
HOW BREACHES ARISE
The Conditions That Cause Trouble
Breach charges cluster around a small number of conditions. Curfews and house arrest generate the most, usually through a compliance check at a residence when the person was at work, at a hospital, or simply did not hear the door. Reporting conditions generate the next largest group, through missed appointments, a change of address that was not communicated, or confusion about frequency. Non-communication conditions generate the most serious ones, because contact with a protected person is treated very differently from a technical lapse. Abstinence conditions and counselling requirements produce breaches where a programme was unavailable, had a waiting list, or was unaffordable.
In almost every one of those categories, documentation is what makes the difference between a conviction and a withdrawal. A shift schedule, a hospital record, a bus disruption notice, a screenshot of a waiting list confirmation, an email to a probation officer sent before the appointment was missed. Evidence created at the time is persuasive; an explanation offered months later is much less so. That is the practical reason to contact counsel and your probation officer promptly rather than hoping the matter passes.
A related charge worth understanding is failure to attend court. Section 145(2) to (5) covers failing to attend as required, and it also engages the practical problem of a bench warrant. Where a court date has been missed, the correct response is to have counsel arrange to attend court promptly to have the warrant addressed, ideally the same week. Warrants do not expire, and being arrested on one months later, often at an inconvenient moment, is a much worse outcome than surrendering with an explanation.
SENTENCING
What a Breach Actually Attracts
Sentences for administration of justice offences vary widely with the nature of the breach. A single missed reporting appointment or a curfew lapse with no risk to anyone sits at the bottom of the range and commonly attracts a withdrawal, a judicial referral hearing under section 523.1, a fine, or a short probation term. A breach involving contact with a protected person, or a pattern of repeated non-compliance, is treated far more seriously and can attract custody, particularly where it demonstrates that the original order is not working.
The indirect consequences frequently matter more than the sentence. A breach while on release for another matter creates a reverse onus at any subsequent bail hearing under section 515(6). It undermines a resolution that may have been negotiated on the underlying charge, because a Crown who was considering diversion or a discharge will reassess. And for a person on a conditional sentence order, an alleged breach is dealt with under section 742.6 on a balance of probabilities before the sentencing court, which may order the remainder of the sentence served in custody.
Where multiple breaches are alleged, they are usually dealt with together, and the totality principle in section 718.2(c) requires that a combined sentence not be unduly long or harsh. Counsel's task is to place a technical failure in its proper context: what the condition was for, whether any risk materialised, what has changed since, and whether varying the order going forward would serve everyone better than punishing the lapse.
OTHER ORDERS
Peace Bonds, Conditional Sentences and Prohibitions
Probation and bail are not the only orders that can be breached, and the consequences differ in each case. Breaching a recognizance entered under section 810 is an offence under section 811, punishable by up to four years by indictment, and the sum entered on the recognizance may also be estreated. Breaching a weapons prohibition order made under section 109 or 110 is an offence under section 117.01, again carrying up to ten years by indictment. Breaching a driving prohibition made under section 320.24 is an offence under section 320.18.
A conditional sentence order operates differently again. An alleged breach is not prosecuted as a new criminal charge. Section 742.6 provides for an allegation to be brought before the court that imposed the sentence, proved on a balance of probabilities rather than beyond a reasonable doubt, with the offender bearing an onus to establish a reasonable excuse. The court may take no action, vary the conditions, suspend the order and direct that a portion of the remaining sentence be served in custody, or terminate the order and direct that the entire remainder be served in custody.
The common thread is that every one of these orders can be varied prospectively, and every one of them creates an offence if simply ignored. Where circumstances change, whether that is a new job, a move, a treatment placement or a change in family arrangements, the order should be brought back before the court. It is a straightforward application, and it is far less costly than defending a charge that only exists because a condition no longer matched reality.
ACTING FOR YOU
Getting the Order to Fit Your Life
A large share of breach charges arise not from defiance but from conditions that were never workable: a curfew that conflicts with a shift, a reporting requirement in a city the person no longer lives in, a residence condition at an address they have had to leave. Those are fixable, and fixing them prospectively is far cheaper than defending a charge. If your conditions do not fit your circumstances, raise it before something goes wrong.
Breach matters may be handled by Lexaltico LLP or referred to experienced criminal defence counsel within our LexKonnect consortium where the underlying matter or the courthouse makes that appropriate. Any referral arrangement is disclosed to you in writing before it takes effect and complies with Rule 3.6-6.1 of the Law Society of Ontario's Rules of Professional Conduct. Your interests govern the choice of counsel.
Common Questions
Frequently Asked Questions
What should I do if I have breached my probation or bail conditions?
Contact a lawyer immediately, and if you are on probation, contact your probation officer to explain and document what happened. Do not wait for the breach to be discovered. Gather anything that supports a reasonable excuse, such as medical records or work schedules, and ask counsel whether the condition itself can be varied going forward.
What must the Crown prove on a breach of probation charge?
Under section 733.1 of the Criminal Code the Crown must prove beyond a reasonable doubt that a valid probation order existed, that you knew of the condition, that you failed or refused to comply with it, and that you did so knowingly or recklessly and without reasonable excuse. Failure on any one of those elements defeats the charge.
What counts as a reasonable excuse?
It depends on the condition and the circumstances. A hospital admission, a documented emergency, a transit failure, genuine inability to pay a fine or complete community service through illness or hardship, or contact initiated by another person that you could not control, can all qualify. Documentation makes a very significant difference.
What is the maximum sentence for breaching probation?
Section 733.1 is a hybrid offence. On indictment the maximum is four years imprisonment; it may also proceed by summary conviction. Breaching a release order or undertaking under section 145 carries a maximum of two years by indictment. Actual sentences for technical breaches are generally at the lower end.
What is a judicial referral hearing?
A procedure created in 2019 under section 523.1 of the Criminal Code. Instead of prosecuting a minor failure to comply where no victim was harmed, the Crown may refer the matter to a hearing at which the court may take no action, impose a new release order, or detain the accused. No conviction results and no criminal record is created.
Can my bail be revoked if I am charged with a breach?
Yes. A breach can lead to a fresh bail hearing on both the new charge and the original one, and section 515(6) may place a reverse onus on you to show why detention is not justified where the new offence is indictable and was allegedly committed while on release. Preparing a strengthened plan quickly is essential.
Can probation conditions be changed?
Yes. Section 732.2(3) of the Criminal Code allows an application to the court to vary the optional conditions of a probation order where circumstances have changed. Release order conditions can be varied on consent of the Crown, or on a bail review to the Superior Court of Justice under section 520.
The other person contacted me. Is that still a breach?
The condition binds you, not them, so responding can be a breach regardless of who made contact. That said, unsolicited contact that you did not respond to and immediately reported can support a reasonable excuse, and it is precisely the situation in which contemporaneous documentation and prompt advice from counsel matter.
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confirmed in writing that it has agreed to act, a conflict search has been completed, and a
retainer has been signed.
Confidentiality of enquiries
Do not send confidential or sensitive information through this website or by email until we have
confirmed in writing that we can act for you. Information sent before that point is
not treated as confidential and may prevent us from acting for you, or for
someone else, in a connected matter.
Response times
We aim to reply within one business day. Contacting us does not guarantee a reply within any
particular period, does not oblige the firm to act, and does not stop, extend or satisfy
any limitation period, filing date or court deadline.
Our telephone line
Our line is answered 24 hours a day, every day of the year. Outside office hours calls are taken
by our intake service, who record your details and pass them to the firm. A lawyer responds during
the next business day, or sooner if the matter is urgent. Answering the telephone is not the same
as giving legal advice, and no relationship arises from that call.
Who we are and how we are regulated
Law Society of Ontario
Lexaltico LLP is regulated by the Law Society of Ontario under the
Law Society Act, R.S.O. 1990, c. L.8. All lawyers practising in
Ontario through the firm are members in good standing.
Law Society of Alberta
Alberta matters are handled by lawyers licensed with, and in good standing with, the
Law Society of Alberta. A lawyer licensed in Ontario is not thereby licensed in
Alberta, and the reverse is also true.
Immigration regulation
Immigration consulting is provided by Regulated Canadian Immigration Consultants
in good standing with the College of Immigration and Citizenship Consultants under the
College of Immigration and Citizenship Consultants Act, S.C. 2019, c. 29,
s. 292.
Lawyers, paralegals and consultants
Not everyone at the firm is a lawyer.
Licensed paralegals in Ontario may act only within the scope the Law Society
permits, which does not include most family, estate or criminal matters.
Immigration consultants are regulated by the College, not by a law society,
and are not lawyers.
Law clerks and managers support files but do not give legal advice.
Each page and biography states which applies. Ask at the outset who will handle your matter and
under which licence.
Languages
We serve clients in thirteen languages. Every page of this website is written and published in
English. Where anything is provided in another language, the English
version governs in the event of a difference. If you need an interpreter, tell us when
you book and we will arrange one.
Fees
The initial assessment
The complimentary 15 minute initial assessment is a brief introductory
conversation. It does not include a review of your documents and does not constitute
legal advice.
The firm charges a fee for substantive consultations, including in civil litigation,
criminal defence and immigration matters. The firm may waive that fee at its discretion.
Any fee is disclosed in advance and credited in full toward your account if you retain the
firm.
Referral fees
Where we refer a matter to another firm, including through LexKonnect, we comply with Rule 3.6-6.1 of the Law Society of Ontario’s Rules of Professional Conduct. Any referral fee is set out in the Law Society’s standard referral agreement, signed by you before the referral proceeds, and no fee is payable to us unless and until the receiving firm has been paid for its work. You are never obliged to accept a referral and are free to retain any firm you choose. No referral arrangement affects the independent professional judgment of any lawyer at this firm.
What is published on this site
Calculators and estimators
They produce estimates from what you type and cannot know the rest. They do not
account for the terms of your contract, statutory exceptions, or the discretion a court will
apply. Do not make a decision on a number produced by a calculator.
Past results
Any outcome described happened on its own facts, before its own decision maker,
under the law as it stood at the time. Past results do not predict or guarantee the result of any
other case.
Reviews and testimonials
Reviews shown here are written by third parties and published on platforms we do not control. Each
describes one person’s experience of one matter. They are not a promise, a
prediction or a guarantee about any other matter.
Links to other websites
This site links to regulators, courts, government sources, professional associations and social
platforms, all operated by others. We do not control them, we are not responsible for
their content or accuracy, and a link is not an endorsement.
Other notices
Limitation periods
Failure to start a proceeding within the applicable limitation period may permanently bar
your claim. In Ontario the general period is two years from discovery
under the Limitations Act, 2002, S.O. 2002, c. 24, Sched. B.
Shorter periods apply to many claims. Seek advice promptly. Nothing on this website extends a
limitation period.
Accessibility
We aim to meet the Accessibility for Ontarians with Disabilities Act
and WCAG 2.1 Level AA. If any part of this site prevents you from reaching us, telephone
+1 416 333 6200 or write to
hello@lexaltico.com and we will provide the information
in another format, at no charge.
