Failure to comply with the do not have contact or communication clauses of an Undertaking (Form 10) or Release Order (Form 11)

What happens if I go back home or contact my spouse/partner?

It is a criminal offence to “fail to comply” with the no contact and/or do not attend conditions listed on a criminal Undertaking or Release Order. If you are caught failing to comply you will be rearrested and criminally charged for failure to comply. For Form 10 Undertaking releases, the relevant law is found in Section 145 (4) of the Criminal Code, which reads:

Failure to comply with undertaking

Section 145 (4) Every person is guilty of an indictable offence and liable to imprisonment for a term of not more than two years or an offence punishable on summary conviction who,

• (a) is at large on an undertaking and who fails, without lawful excuse, to comply with a condition of that undertaking

Section 145 (5) similarly details the offence of failing to comply with a bail Release Order (Form 11), which carries the same potential punishments as s. 145 (4). Those released from the police station will have an Undertaking. Those released by the courts will have a Release Order.

You may not be released from custody if you fail to comply with an Undertaking or Release Order

While last time you were ultimately released from custody pending the outcome of your case, there is a much greater chance you will be held for bail and/or that the Crown Attorney will oppose your release this time. If you breach the conditions, the Crown and Court will be concerned that you have a propensity to disobey court orders and may use this as a reason to deny bail. If bail is denied you will await the outcome of your case in an Ontario provincial jail which could take many months or even over a year.

How will the police know if I communicate with my spouse/partner or go back home?

There are many ways you can be caught for failing to comply with the conditions of an Undertaking or bail Release Order. The most common are:

1. The complainant ends up calling the police/911 again. The “victim” has already called the police once and therefore may do it again if another fight occurs or if they do not want contact. Police tell the alleged victim to immediately call 911 in the event of a breach or if you try to make contact with them. They are clearly informed that this includes text messages, emails, and communications through 3rd parties (indirect contact).


2. A 3rd party who is aware of the breach reports it to the police. This could be a neighbour, co-worker, family member/child, social worker, teacher, counsellor, doctor, etc.


3. Police surveillance: Ontario police forces routinely conduct surveillance in domestic cases especially if they suspect the accused will breach their conditions. This can include using undercover officers, knocking on the door to check, requesting CCTV footage from condos, apartment buildings, etc.


4. Notification systems linked to license plates, driver’s license, etc. Some police cars have automatic license plate scan technology that notifies them of release conditions. If this system alerts they may pull your vehicle over to check (especially if they see more than one person in the car).


5. Traffic stops and general police or emergency occurrence contact. People come in contact with the police involuntarily all the time. Perhaps they get pulled over for speeding, at a RIDE DUI check stop or are involved in a car accident. Perhaps an unrelated medical emergency occurs. There are many ways in which people may unexpectedly come in contact with the police.

While these are the 5 most common ways people get caught, it is by no means an exhaustive list. Failure to comply (aka breach) of a release condition or court order is the most common criminal offence people get charged for in Ontario.

It should be also noted that the evidence in fail to comply cases tends to be quite strong as most people charged are caught in the act of breaching by the police themselves. Digital evidence in the form of text messages, social media, voicemails, emails, etc. may also exist proving that the accused contacted the victim either directly or indirectly (through a 3rd party).

Police know how difficult it is for people to abstain from communicating with their domestic partner. Those charged are often new immigrants without local friends and family to support them. They may have nowhere else to live and it can be extremely expensive to find alternative living arrangements for months on end.

As such it is quite easy for the police to catch and charge those who breach. Police forces in Toronto, Peel, York, Durham, Halton and throughout Ontario sometimes have entire teams dedicated to ensuring conditions of release are complied with. Failing to comply is a completely separate charge/case from the original substantive charges. Even if you are found innocent of the original charges, or they are later dropped, you still can be convicted for failing to comply.

When you get charged for failure to comply under Section 145 you will have a new case to deal with, possibly in a different jurisdiction, which itself can result in jail and a criminal record.

Since the fail to comply charges are separate you will be charged by the police force in the jurisdiction where the breach occurs. For example, if someone on a domestic violence Toronto Police Service Undertaking is caught with their wife in Niagara Falls, they will have a separate case in that region at a different courthouse with different Crown Attorneys to deal with. Sometimes cases are eventually merged via a global resolution but this is only after several court appearances and delays.

The new charges are considered to be a separate matter and will be handled independently in their respective jurisdiction. Failure to comply is considered a very serious criminal offence and can itself result in jail and a criminal record for first time offenders even if the original charge for which the conditions were put in place is ultimately determined to be meritless (resulting in an acquittal or withdrawal of the original charges only).


Call us today for a free assessment
You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. Our goal is to have the charges withdrawn and the release conditions varied to allow contact without a risky and unnecessary trial. We provide effective and affordable lawyer representation for those charged throughout all of Ontario, Canada.

You don't need to be apart from your spouse and family, spend tens of thousands of dollars, and risk getting a criminal record because of an unfortunate domestic incident. Have a skilled criminal lawyer protect you and your future from the stigma and consequences of a criminal record.





Are you a lawyer? If you are defending a domestic assault/uttering threats/mischief related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.

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