When someone breaches a court order, they can face serious legal consequences. Depending on the nature of the breach, the individual may be charged with a criminal offence and face a jail sentence. They may also be responsible for any damages caused by the breach, and may be subject to other sanctions.
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For a conviction to be secured, the Crown must prove the mental elements of the crime. An accused must demonstrate that the court order was disobeyed with the intention of disobeying it and that the offender knew of its existence at the time the order was broken. It will not be possible for the Crown to prove that the accused possessed the requisite mental intent elements of this offence, or for the defence to prove that the accused did not meet these elements.
Depending on the evidence available, this type of defence may be appropriate. In the case of a breach of the publication ban, demonstrating that the publisher had reason to believe the publication ban had expired or had been lifted before any information about a proceeding was published could not satisfy the mens rea elements of a section 127 offence.
Alternative Act Argument
Your defence will check other statutes to determine whether the section 127 charge is appropriate if the client is charged with a section 127 offence.
According to section 127, the section only applies if there is no other punishment or proceeding expressly provided by another law. Therefore, your defence paralegal will ensure that any charges against you are properly filed and that any frivolous or unfounded charges are challenged.
A lawful excuse to disobey a court order does not constitute an offence, as explicitly stated in section 127. The accused can demonstrate that they breached a court order lawfully if the evidence supports such a defence.
You have rights and freedoms under the Canadian Charter before and after your arrest. Police failing to obey these rights, whether intentionally or inadvertently, could aid your defence.
Under section 24(2) of the Charter, you may be able to have some or all of the evidence the Crown is using to obtain a conviction excluded if any of your Charter rights have been violated before or after your arrest.
A case called R v Gibbons, 2013 ONSC 1403 (CanLII) found section 127 of the Criminal Code to be constitutional and not overbroad. Thus, a constitutional challenge to the law is not currently an available defence.
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Some common information about breach of court orders.
There are several ways in which court orders are violated, including:
Even a minor breach of your conditions could have serious consequences. Breach of a court order carries a maximum sentence of 2 years in prison. There is also the possibility of your bail or probation being rescinded, putting you behind bars, and your sureties may have to forfeit the money or belongings that they posted as bail. Furthermore, the court will see you as less of a reliable witness, which may adversely affect your chances of succeeding at trial as well as obtaining further release in the future.
Section 127 of the Criminal Code criminalizes disobeying a court order.
In general, disobeying a court order means disobeying any order made by a court or by any person or body authorized to make such a decision by provincial or federal law or statute. It is not uncommon for a court order to be disobeyed to be laid as a charge only if there is no other alternative and appropriate charge.
According to section 127(1) of the Criminal Code, this offence is a hybrid offence, which means that the Crown has the option to either proceed summarily (which is a less serious category of criminal offences) or to proceed indictably (which is a more serious category of criminal offences).
There are many common defences to disobeying a court order, but as not every case is the same and hence, not all defences apply to every case, here are some common defences to disobeying a court order:
Here are answers to some common questions.
Indictment charges (more serious categories of criminal offences) can result in up to 2 years imprisonment for disobeying a court order.
Summarily charged charges can result in up to 2 years less a day imprisonment (less serious categories of criminal offences).
All prospective sentencing dispositions are available to a court for deciding whether to impose a penalty for disobeying a court order.
In a nutshell, the answer is yes. The punishment for disobeying a court order may include imprisonment, but it is not a mandatory punishment for disobeying a court order.
As a result, one of our paralegals will be able to review your case and inform you, based on the facts of your case, whether or not you are likely to be jailed for disobeying a court order as outlined under section 127 of the Criminal Code.
Disobeying a court order is included under Offences Against the Administration of Justice in the Criminal Code. A court order is a ruling by a judge or justice of the peace, setting out what you must do.
These orders can be made in any court. For example, a family court judge could order you to pay child support. In addition, a criminal court judge could order you to appear for trial on a certain day.
According to the Criminal Code, anyone who, without a lawful excuse, disobeys a lawful order made by a court of justice or by a person or body of persons authorized by any Act can be found guilty of:
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