Released by police in Ontario with an undertaking or appearance notice: what did you agree to, and what if you break it?

An appearance notice only requires you to attend court, and sometimes a fingerprint appointment, at the times written on it. An undertaking requires the same and can add conditions, such as no contact with a person or staying away from a place, that bind you until the case ends. Breaking it can mean a new charge with up to two years in prison, an arrest and a bail hearing where you must justify release, or a judicial referral hearing.

Being released by the police is the lighter end of the bail system in Ontario: no justice has looked at your case yet, and the officer has decided you do not need to be held for a hearing. Our page on what happens at a first court appearance in Toronto walks through the first date itself. This page goes further into the paper you signed: which document it is, what each condition means, how long it lasts, how it can be changed, and exactly what can happen if you break it.

Which document did the police give you?

A release order is different again. It is made by a justice after a bail hearing (s. 515), may involve a surety, and is explained on our page about what a surety agrees to. If you were not released by the police at all, see when a bail hearing happens after a weekend or holiday arrest in Toronto.

How does police release work, step by step?

1. The officer decides whether to hold you. After an arrest without a warrant, the officer must release you as soon as practicable by summons, appearance notice or undertaking (s. 498(1)), unless the officer believes on reasonable grounds that you need to be held in the public interest, for example to confirm your identity, preserve evidence, prevent another offence or protect a victim or witness, or that you will not come to court (s. 498(1.1)).
2. The least onerous option comes first. Police, justices and judges must give primary consideration to release at the earliest reasonable opportunity and on the least onerous conditions that are appropriate, including conditions you can reasonably comply with (s. 493.1).
3. If you are kept in custody. You must be taken before a justice within 24 hours if one is available (s. 503(1)). Before then, an officer who decides custody is no longer needed must release you, which can again be on an undertaking (s. 503(1.1)).
4. You are asked to sign. The officer asks you to sign the document in duplicate and gives you a copy. If you refuse to sign, the document is still valid (s. 500(4); s. 501(6)).
5. A justice confirms it. Once a charge is laid in an Information, a justice either confirms the appearance notice or undertaking, or cancels it and issues a summons or warrant instead; if it is cancelled without a replacement, you must be notified (s. 508(1)).
6. Your first court date. In Toronto that is normally at the Ontario Court of Justice at 10 Armoury Street. York Regional Police charges go to the Newmarket courthouse at 50 Eagle Street West. Peel charges go to the Brampton courthouse at 7755 Hurontario Street.

What can an undertaking ask of you?

Every undertaking contains the condition that you attend court when stated and afterwards as the court requires (s. 501(2)). The officer may add conditions from a closed list, but only if each one is reasonable in the circumstances of the offence and necessary to ensure you attend court, to protect a victim or witness, or to prevent the offence continuing or another offence (s. 501(3)).

An appearance notice, an undertaking or a summons can also require you to attend at a set time and place for fingerprints and photographs under the Identification of Criminals Act, but only for an indictable or hybrid offence (s. 500(3); s. 501(4); s. 509(5)). Our page on attending for fingerprints and photographs after a charge explains that appointment and how to ask for the records to be destroyed later. If the weapons condition applies, our guide to firearms seized after a domestic call covers what happens to the guns and licence.

How long do the conditions last?

Longer than most people expect. An appearance notice, summons or undertaking continues in force until your trial is completed or, if you are found guilty of an offence other than murder and the other section 469 offences, until you are sentenced (s. 523(1)). It also carries over to any new Information charging the same offence or an included offence (s. 523(1) and (1.1)). Adjournments, new court dates and a change of lawyer do not end it.

What happens if you break it?

• A new charge. Failing, without lawful excuse, to comply with a condition of an undertaking is an offence, as is failing to appear for court or fingerprints under an undertaking or appearance notice that a justice has confirmed. Each is a hybrid offence with a maximum of two years in prison if the Crown proceeds by indictment (s. 145(3) and (4)). A mistake in how the paper describes the offence is not a lawful excuse (s. 145(6)). Our page on breach penalties in Ontario compares breach charges side by side.
• A warrant. If you miss court under a confirmed appearance notice or undertaking, a justice may issue a warrant for your arrest (s. 512(2)(b)); missing the fingerprint appointment can also lead to a warrant (s. 512.2). Our guide to what happens after a missed court date explains what to do that day.
• A judicial referral hearing instead of a charge. If the officer believes the breach caused no physical or emotional harm to a victim, no property damage and no economic loss, the officer can issue an appearance notice for a judicial referral hearing without laying a charge (s. 496). The justice reviews your conditions and can take no action, cancel your release and make a new release order, or, if the Crown shows cause, order you detained (s. 523.1(3)). Once that decision is made, no charge can be laid for that failure, and any charge already laid is dismissed (s. 523.1(4) and (5)).
• Arrest and a hearing to cancel your release. If you are arrested for breaking the undertaking, or for a new offence while on it, the justice must cancel the undertaking if the breach is proved or there are reasonable grounds to believe you committed the new offence (s. 524(3)). After a proven breach, you are then detained unless you show cause by clearly demonstrating that your proposed release plan addresses the risks (s. 524(4)). That is a much harder position than the one you were in when the officer released you.

Can the conditions be changed?

Yes, but not by agreement with the complainant or a call to the officer. An undertaking can be varied with the written consent of you and the prosecutor (s. 502(1)). If the Crown will not agree, you can apply to a justice to vary the undertaking or to replace it with a release order (s. 502(2)); if the prosecutor is the one applying, it must give you three days' notice. Until a change is approved, every condition stays exactly as written. Our page on changing a no-contact condition when you share children or a home explains how these requests usually go.

What changes the answer?

• The document you signed. An appearance notice or summons has no conditions besides attendance; an undertaking can carry any of the conditions in section 501(3).
• Whether a justice confirmed it. The offences of missing court or fingerprints under an appearance notice or undertaking apply once a justice has confirmed it under section 508 (s. 145(3) and (4)(b)).
• Whether the breach caused harm. No harm, damage or loss allows the judicial referral route (s. 496; s. 523.1); otherwise a charge and a section 524 hearing are possible.
• A lawful excuse. The offences in section 145 require that the failure be "without lawful excuse".
• The type of offence. Fingerprints can be required only for indictable or hybrid offences (s. 501(4)).
• Where you live. Living outside Ontario, or more than 200 kilometres away, allows a cash deposit of up to $500 (s. 501(3)(j)).

A worked example

For example, imagine Dariush, who lives in Vaughan and is charged by York Regional Police with assault after an argument with his brother-in-law. He is released on an undertaking with a court date in Newmarket, a fingerprint appointment the following week, and two conditions: no contact, directly or indirectly, with his brother-in-law, and not to attend his brother-in-law's home. Dariush reads English slowly and signed quickly.

A month later his niece's wedding is planned, and the brother-in-law will be there. His sister tells him the brother-in-law "does not mind" and sends him a voice message from him. Dariush's lawyer explains, in Farsi, that the brother-in-law's view does not change the undertaking, that replying to the message, even through his sister, could be indirect communication, and that going to the wedding without a variation could be a breach under section 145(4). The lawyer asks the Crown for a written consent variation under section 502(1) allowing him to attend the event with no communication. If the Crown refuses, the lawyer can apply to a justice under section 502(2). Until then, Dariush stays away. His local police district and court are described on our page about criminal cases for Vaughan residents. This is a hypothetical walk-through, not a prediction of any result.

What mistakes do people make?

1. Believing the complainant can cancel a condition. Only the Crown's written consent or a justice can vary an undertaking (s. 502).
2. Answering messages. A no-contact condition covers indirect communication, including messages passed through friends or family (s. 501(3)(d)).
3. Assuming conditions end at the first court date. They last until the trial is completed or, after a finding of guilt, until sentence (s. 523(1)).
4. Skipping the fingerprint appointment. It is a separate obligation, and missing it can lead to a warrant (s. 512.2).
5. Moving without telling anyone. If your undertaking includes a notification or residence condition, a move without notice can be a breach (s. 501(3)(c) and (g)).
6. Losing the paper. Your copy lists every date and condition; without it you are relying on memory.

What to do this week

1. Read the document line by line. Note the court date and courtroom, any fingerprint date, and every condition.
2. Put the dates in your calendar. Include the fingerprint appointment as well as court.
3. Deal with any weapons condition. Arrange the surrender of anything the undertaking covers, with any licence or registration certificate, to the named person (s. 501(3)(h)).
4. Tell family members about no-contact terms. Ask them not to pass on messages from the person named.
5. Keep a record. If the person named contacts you, do not reply; write down the date and keep the message for your lawyer.
6. Ask about a variation early. If a condition is hard to live with, a lawyer can ask the Crown for consent under section 502(1). If you are more at ease in Persian, our guide for Persian-speaking people charged in the GTA explains each step.

Frequently asked questions

Is an undertaking the same as bail?

Not quite. An undertaking is given to a police officer without a court hearing. A release order is made by a justice after a bail hearing under section 515 and can include a surety; breaching it is an offence under section 145(5).

Did signing the undertaking mean I admitted the offence?

No. The undertaking sets out the substance of the offence you are "alleged to have committed" (s. 501(1)(b)). Signing is a promise to follow the conditions, not an admission.

What if I refused to sign?

The document is still valid. Section 501(6) says that if the accused fails or refuses to sign, the lack of a signature does not invalidate the undertaking, and section 500(4) says the same for an appearance notice.

Can the police add a condition after I am released?

An undertaking can be varied only with the written consent of you and the prosecutor, or by a justice on an application (s. 502). The prosecutor must give you three days' notice if it applies without your consent.

If I breach a condition, will I always be charged?

Not always. Where the breach caused no harm, damage or loss, police can use a judicial referral hearing instead (s. 496), and once a decision is made there no charge can be laid for that failure (s. 523.1(5)). Police can still lay a charge or arrest you, depending on the facts.

Does a judicial referral hearing put me back in custody?

It can, but only if the Crown shows cause why detention is justified under section 515(10). The justice can also take no action or make a new release order with different conditions (s. 523.1(3)).

Getting help

Gambriani Law PC represents people released by police in Toronto, York Region and Peel, reviews every condition with them in English or Farsi, and asks the Crown for variations when a condition is not workable. Call +1 647 970 3370 or reach us through the contact page.

This page is general information about Ontario criminal procedure, not legal advice about your case.