No-Communication Conditions under Recognizances and Undertakings

In Canada, a person who has been criminally charged may either be released from custody before their trial or detained pending trial. In some cases, police release an accused from custody if the accused agrees to abide by certain conditions. This form of release is called an undertaking. If the police do not release the accused, the accused will have a bail hearing at which the court determines whether to grant release and, if so, on what conditions.

If you have been criminally charged and released, your release documents may include a condition that prohibits you from communicating with a named person or people. This condition commonly reads “You must not communicate, directly or indirectly, with ____________________.”

This post will address frequently asked questions about no-communication conditions:

Indirect communication means conveying a message through a third party. For example, asking someone to relay a message to a person on your behalf would be indirect communication. A third party need not be a person. Indirect communication frequently involves social media postings directed at individuals named in no-communication conditions.

Yes. But if your release does not specify an exception, then one does not exist.

Yes. There are two ways to change release conditions.

The first is called a consent variation. That is when the Crown (prosecutor) agrees to change a condition of your release. A consent variation is usually a result of negotiations between the defence and Crown.

Usually, before agreeing to change a no-communication, the Crown will reach out to the person or persons named in the condition. If that person or those persons do not want communication, a consent variation is likely off the table.

In some cases, the Crown may agree to permit communication with minimal or no restrictions. But it is far more common for variations to allow communication in limited circumstances. Common examples include:

• Communication through legal counsel
• Communication through a mutually agreeable third-party
• Communication for family law purposes
• Communication only for child-rearing purposes

This is far from an exhaustive list.

The second way to change release conditions is through a contested proceeding in court. This process is complicated and requires an application and litigation before a judge (or possibly a Justice of the Peace if the conditions are pursuant to an Undertaking). It is recommended that a lawyer is engaged for this process.

No.

It does not matter whether a person named in a no-communication condition initiated communication first. Unless the no-communication includes an exception, you may not respond.

It is important to understand the conditions are a legal obligation independent to the intentions of the person named in the no-communication order. An alleged victim, witness, or anyone named in the undertaking or bail is not able to change the conditions even if they are the person named. It must be done through the Court.

Consider the following example.

Mr. X is charged with assaulting his wife, Ms. Y. Mr. X’s release conditions prohibit communication with Ms. Y. Ms. Y emails Mr. X asking to reconcile. Ms. Y’s email would not undo the no-communication. If Mr. X responded, he would violate his release conditions.

Violating a no-communication can have far-reaching consequences. You may be charged with breaching your release, which is a separate criminal offence. Upon your arrest for a breach, the police may detain you at the station pending the outcome of a bail hearing. A bail hearing is supposed to and usually occurs within 24 hours of your arrest. If the court does not grant bail, you may be held in custody until your trial.

Violating a no-communication could also undermine any progress you or your lawyer had made in resolving your original case. The Crown may be less inclined to proceed with a previously negotiated resolution once a new charge or charges are in the mix.

Changing conditions of an undertaking or Recognizance of Bail is a relatively straight forward process if you have experienced legal counsel. Call (416) 999-8389 to speak to a lawyer and explain how we can assist in changing no-communication conditions.