Breach of probation is a separate criminal charge. It applies when a person on probation fails to comply with one or more conditions in their probation order. The Crown must prove both that the condition existed and that the accused failed to follow it.
What is probation?
Probation is a court-imposed period of supervised release. A judge may order probation instead of, or in addition to, a jail sentence when they believe the offender can be managed in the community without posing a risk to public safety. Probation is not granted automatically. The judge has to be satisfied that the conditions will reduce the risk of further offending.
Mandatory probation conditions
Every probation order includes three conditions that cannot be removed: to keep the peace and be of good behaviour; to appear before the court when required; and to notify the court or probation officer in advance of any change of name, address, employment, or occupation. These apply regardless of what other conditions are attached.
Optional conditions
Beyond the mandatory terms, a judge may impose other conditions that seem reasonably necessary for rehabilitation or public safety. These can include reporting to a probation officer, performing community service, attending drug or alcohol treatment, staying away from certain people or places, or complying with any other requirement the court considers appropriate.
What counts as a breach?
A breach occurs when the accused fails to comply with any condition in the order, whether mandatory or optional. The charge is entirely separate from the original offence that led to probation. A person can face a breach charge while the underlying case is still before the courts.
In some situations, circumstances genuinely make compliance impossible. A necessary breach, where the accused had no reasonable choice but to violate the condition, can be raised as a defence.
Penalties
If the Crown proceeds by indictment, a conviction for failing to comply with a probation order carries a maximum sentence of four years in prison. If the charge proceeds summarily, the general maximum is a $5,000 fine, imprisonment for up to two years less a day, or both. A sentence for the breach is determined separately from any sentence imposed for the original offence.
Common defences
The Crown must prove the breach beyond a reasonable doubt. A lawyer may identify gaps in the Crown’s evidence, argue that the circumstances do not actually amount to a violation of the specific condition, or establish that the accused had no realistic choice but to act as they did. The right approach depends on the wording of the probation order and the available evidence.
Frequently asked questions
Is breach of probation a criminal charge?
Yes. It is a separate offence under the Criminal Code, independent of whatever charge originally led to the probation order.
Can I go to jail for a breach?
Yes. The realistic risk depends on the nature of the breach, any prior record, and the judge’s assessment. Jail is more likely where the breach is serious or repeated.
What if I had a good reason for not complying?
Necessity can be a defence in appropriate cases. Speaking with a lawyer before making any statements is advisable.
What happens to my original case?
A breach charge does not automatically affect the outcome of the original matter, but it can affect bail decisions and how the court views you going forward.
Can my probation conditions be changed?
In some cases, yes. A lawyer can apply to vary the conditions if circumstances have genuinely changed. Pursuing a variation is always better than ignoring a condition that has become unworkable.
Speak with a Toronto criminal lawyer
If you have been charged with breach of probation, contact the firm for a free consultation before your next court date.