Breach of Court Orders
Administration of Justice
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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Breach of Court Orders
To determine whether any defence is available and strong, it is entirely up to the facts of your case. The following common defences can be raised against charges under Section 127 of the Criminal Code:
Lack of Mens Rea
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.
Breach of Court Order
Lawful Excuse
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.
Defences Available Under the Charter
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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Breach of Court Orders
Some common information about breach of court orders.
Breach of Court Orders: Explained
- It is possible to breach a court order if you fail to comply with the probation or bail conditions.
There are several ways in which court orders are violated, including:
- Breaching a probation order
- Failing to abide by a court-ordered injunction
- Failing to abide by a court-ordered publication ban
- Failing to appear in court
- Failing to appear in court, if subpoenaed as a witness
- Failing to complete community service
- Failing to meet with a probation officer
- Failing to pay fines on time
- Failing to remain home, while under house arrest
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.
Breach of Court Orders: Criminal Offence
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).
Breach of Court Orders: Defences
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:
- Alternative Act argument
- Applicable Charter defences
- Lawful excuse
- Lack of mens rea
Frequently Asked Questions
Here are answers to some common questions.