Number 6 on Pardon Services Canada’s Top 10 list of the most commonly seen offences individuals seek a Record Suspension for are Failure to Comply with Recognizance and Failure to Appear in Court. Both of these offences fall under Section 145 of the Criminal Code containing hybrid offences commonly known as offences Against the Administration of Justice. The Parole Board of Canada (PBC) came across 656 occurrences of this offence between January 1 and December 31, 2013 which also places it on their list of the Top 10 offences for which a Pardon/Record Suspension was granted.
What is Recognizance?
A recognizance is a conditional obligation undertaken before the court while an individual is out of jail on a release. It is an obligation with a condition to comply with some act(s) required by law, which is/are specified. Recognizances are often in place regarding bail in criminal cases. An offender posts bail and has certain conditions they must comply with to remain free until their hearing or trial.
Common conditions that an offender can be entered into include one or more of the following:
- They must remain within a certain area (city, country or province)
- They must deposit their passport
- They must notify police of any change in address or employment
- They must abstain from communicating with someone or from going someplace
- They must abstain from possessing a firearm and surrender any firearm
- They must report to police at specified times
- They must report to court on a certain date
- They must abstain from consuming alcohol or other intoxicating substances
- They must abstain from taking drugs except in accordance with a medical prescription
- They must abide by a curfew
- They must enter treatment for substance abuse
What many individuals do not realize is that non-compliance with a recognizance is considered a criminal offence of its own. Any infraction may ultimately result in a new conviction. Many assume that failure to comply with probation is one and the same as the aforementioned, however, probation is what comes after a conviction.
Another criminal offence that is treated seriously is Failure to Appear in Court. When arrested, an individual will be issued a summons to appear in court. If they fail to comply with the summons to appear, the individual has committed another crime. If they have a lawful excuse to not appear however, this may just result in a ‘slap on the hand’ as opposed to another conviction. Keep in mind that being ill, having to work, attending a family event, etc., are not examples of lawful excuses. According to section 145(2) of the Criminal Code failure to appear in court can result in being found guilty of an indictable offence and liable to imprisonment for a term not exceeding two years, or guilty of an offence punishable on summary conviction.
Canadian courts view failing to appear as a disregard for the criminal justice system and the court process. If an individual has breached conditions in the past and has been sentenced the maximum penalty that a summary conviction will allow, the Judge can then sentence them on their next breach by indictment, under the step up principle – the breach being failing to comply with a summons to appear.
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For further information about these convictions and applying for a record suspension, speak to our Client Advisors at 1-866-972-7366.