An ‘Undertaking to a Peace Officer,’ often just called an ‘undertaking,’ is a common way people charged with a criminal offence in Canada can be released. In simpler terms, an undertaking is a promise made to a peace officer, using a standard form known as Form 10. This promise includes important details like what offence the person is charged with, when they need to go to court, and other specific conditions set by the officer based on the situation. But undertakings aren’t used for every type of offence. They’re usually chosen for less serious cases where the person released isn’t a threat to public safety, is unlikely to commit more offences, and their release wouldn’t upset the public.

In cases of more serious offences, the officer might hold the person for a bail hearing instead. At this hearing, a judge or justice of the peace will decide if the person can be released on bail. Bail is another form of release where the person may need to meet certain conditions set by the court.

When a peace officer is deciding whether to release someone on an undertaking, they use a form from the Criminal Code of Canada called FORM 10 (Section 2). To choose this option, the officer must be sure about several things: They need to know the person’s identity, have evidence of the offence, believe the person won’t repeat the crime, consider public safety and victim welfare, and be confident that the person will attend their court dates.

The officer can release the individual if they’re certain about these factors. If not, they must quickly bring the person before a judge or justice of the peace. Note that this release option is not for severe offences like murder or terrorism (as per section 469 of the Criminal Code).

After release, the person gets documents to sign. Not signing them doesn’t invalidate the release, but refusal might lead the officer to involve a court instead.

Included in the release are two notices: one for a court appearance and another for fingerprinting under the Identification of Criminals Act. While you must personally attend the fingerprinting, a lawyer can appear on your behalf at your first court appearance

An undertaking must contain basic information including: the name, date of birth, contact information of the accused person, the charges they are facing, and a summary of the offences for which a person may be charged for non-compliance.

There are mandatory and optional conditions in an undertaking. The mandatory condition is that an accused attend court and thereafter as directed. The optional conditions may include reporting, boundary conditions,  notification requirements, non-contact orders, residence conditions, curfew, weapons prohibitions, or a monetary deposit or pledge (not exceeding $500.00). They may also include any other conditions they consider necessary to ensure the safety and security of any alleged victim of witness to the offences charged.

If you need to change the conditions of your undertaking, there are two ways to do it. The first and easiest way is to get the prosecutor to agree to the change you want. You can ask for this change either through a lawyer or by using forms that are usually available at the Crown Attorney’s office. If the prosecutor agrees, a judge or justice of the peace needs to sign off on it. This approval can happen in a courtroom or in a more private, administrative setting. Once you get the revised document and sign it, the new conditions take effect. Remember, for any change to be official, it must be approved by the Court.

However, if the prosecutor doesn’t agree to the change, you can still ask a judge or justice of the peace to decide. They will use section 502(1) of the Criminal Code to see if your request should be approved. The judge will think about various factors set out in sections 515(1) or (2) of the Criminal Code. It’s important to know that just asking for a change doesn’t mean it will be granted. The judge will look at everything from scratch and might decide to lessen, increase, or change the conditions in some other way. These requests can be complex and often involve specific rules and scheduling court time. That’s why it’s usually best to have a lawyer help you with this process, especially if the prosecutor isn’t on board with the change.

Intentionally breaching the conditions of an undertaking to a peace officer is a serious offence. The Courts will often treat these types of offences as ones that undermine a properly functioning justice system and wilful disregard for the protections offered to witnesses and victims.

No one, other than the Court, has the ability to change conditions of an undertaking once it is entered into. Even if the alleged victim of the crime doesn’t agree with the conditions, it is not up to them to determine whether they ought to be followed. A common breach one sees is a violation of a no-contact order between an alleged victim and an accused – this frequently happens in cases involving domestic violence. Even if the alleged victim wants contact restored, it is up to the Court to make that determination, or approve of a variation the prosecutor has consented to. No victim has the right to waive conditions, nor should they attempt to persuade an accused to violate them.

When a person violates an undertaking, the consequences may be severe. The Criminal Code of Canada makes it a criminal offence for failing to comply with an undertaking. If a person is found guilty, a person may face imprisonment for up to two years. While this may be the maximum sentence, it is not uncommon for an individual to have to serve a short jail sentence for violating even seemingly insignificant conditions. At a minimum, the person will be arrested and likely held for a bail hearing and not released on another undertaking.  In addition, breaching an undertaking is often treated as an aggravating factor in sentencing. This will also frustrate negotiations for a lenient sentence or withdraw of the underlying charges.

Having a lawyer to help you through any criminal process is highly beneficial. When it comes to undertakings, a lawyer can quickly contact a prosecutor to discuss changing some of the conditions. These changes might be needed for various reasons, like if the conditions are affecting your job, childcare, medical treatment, housing, family law matters, or if the conditions set by the officer were too harsh for the situation.

If the prosecutor doesn’t agree to modify the conditions, your lawyer can take action to have a judge or justice of the peace review the undertaking. Without a lawyer, handling these matters is much harder. Legal procedures are complex and difficult to navigate. Also, prosecutors are often hesitant to discuss these matters directly with accused persons who don’t have legal representation, as it could lead to complications in the case.

A lawyer acts as a clear-headed, convincing advocate for you. They can effectively argue for changes or even the end of your undertaking, while also working towards a fair resolution of your case that is satisfactory for everyone involved.

Case Study: Mike and Maria and violation of conditions of no-contact in an undertaking

Initial Incident: Maria calls 911, reporting that her husband, Mike, in a drunken state, broke her phone during an argument. Police arrest Mike for assault and mischief.

Release on Undertaking: After sobering up in a holding cell, Mike agrees to stay away from their home for the night and is released on an undertaking. The conditions include no contact with Maria, staying 50 metres away from her, updating his residence details with the police, and abstaining from alcohol.

Concerns and Legal Advice: Worried about the impact on his life and access to their two young children, Mike seeks legal advice. His lawyer outlines options to modify the undertaking conditions but warns of potential delays and legal costs.

Mike’s Decision and Consequences: On a tight budget, Mike tries to speak directly to the prosecutor but is unsuccessful. Maria calls him, regretting involving the police and asks him to come home. Contravening his undertaking, Mike visits the house.

Further Legal Complications: The police, informed by Mike’s failure to update his residence, arrest him for not complying with the undertaking. At a subsequent bail hearing, he is released with modified conditions, including living with his mother and arranging child care through a third party. His no-alcohol condition is removed due to his addiction.

Escalated Situation: Mike contacts his lawyer again, now facing a tougher situation. The lawyer explains that modifying conditions set by a justice of the peace requires a Superior Court review, which is more complex and costly. Moreover, Mike’s direct violation of the undertaking terms complicates his defence and could lead to jail time, delay, and an increase in legal fees.

Anyone who is released on an undertaking to a peace officer should keep the following simple principles in mind:

1. Breaching the conditions of an undertaking is a serious offence, often carrying consequences that eclipse the underlying allegation.
2. Engaging a lawyer is the most effective way to manage the amending or removing of conditions in a variation.
3. No matter how unreasonable or undesirable the conditions may seem, only the Court has the authority to change them.
4. An alleged victim does not have the legal authority to change or remove conditions of an undertaking.
5. A court can quickly and easily change conditions with the consent of the prosecutor.
6. If a prosecutor disagrees with changing conditions, an individual may apply to the court for alteration.
7. An undertaking remains in effect until the case is concluded, or until it is revoked or replaced by another court order.

Our lawyers are knowledgeable and effective in handling variations of undertakings. They are experienced advocates, striving to achieve the best possible outcome for your case.  Our lawyers prioritize communication, strategy, and outcomes that preserve our client’s future success.

Feel free to contact our firm at any time for assistance. You will be connected directly to a lawyer. Call us at (416) 999-8389.