What Does Released on an Undertaking Mean?

Under Canadian criminal law, an undertaking is a legally binding agreement between an accused person and the state, represented by a peace officer or police officer, in which the accused is released in exchange for a promise to appear in court.

It’s an alternative to more restrictive forms of release like bail. The undertaking outlines specific conditions that the accused must adhere to while awaiting further legal proceedings. This form of release is typically used in less severe criminal offences, where the accused poses minimal risk to the public such as:

• Theft Under $5,000: This is a common offence where an undertaking might be used, especially if the accused has no significant criminal history and the theft involved is of a relatively low value.
• Assault: In cases of simple assault, particularly where there are no significant injuries and no use of a weapon, an undertaking might be issued. Conditions could include no contact with the victim and staying away from certain locations.
• Mischief: For crimes involving property damage, such as graffiti or vandalism, where the act is not part of a larger, more serious criminal activity, an undertaking could be appropriate.
• Minor Drug Offences: For lesser drug offences, such as possession of a small amount of a controlled substance, an undertaking might be given, possibly with conditions like not visiting certain areas known for drug activity.
• Driving Offences: In some cases of driving under the influence or dangerous driving where the circumstances are not aggravated (like no injuries or death involved), an undertaking could be considered.

The Criminal Code of Canada (Section 499) governs the issuance of undertakings, defining them as part of the process of compelling an accused person’s appearance in court. Unlike a release order, which often involves a financial component and a formal bail hearing, an undertaking is generally less complex and quicker to administer. It’s a tool used to ensure that an accused person remains accountable and returns to court, without the need for continued custody.

An undertaking in British Columbia begins when you are arrested or detained by a police officer for a criminal offence. Depending on the severity of the criminal charge and your criminal history, the officer in charge has the discretion to decide whether to release the individual on an undertaking. This decision is often influenced by factors such as the nature of the crime, the likelihood you will appear in court, and potential risks to public safety or reoffending. This may happen directly on scene or after you are brought to and processed as a police station.

If an undertaking is deemed appropriate, the officer will outline the specific conditions you must adhere to while awaiting trial. These conditions are tailored to the individual case and may include restrictions like no-contact orders, curfews, or a mandate to stay with a certain territorial jurisdiction.

Other valuable security is a condition that is at times included in an undertaking. It requires that the accused deposit a certain amount of money or valuable item as a guarantee for their compliance with the undertaking’s terms. This condition rare and is often only used if the accused is not ordinarily resident near the jurisdiction of the court.

As the accused, you are required to formally agree to these terms and sign the undertaking, thereby legally binding yourself to comply with the conditions set forth, which includes attending your court appearance (or appearances) as scheduled for the alleged offence. Non-compliance with these conditions or failing to appear at a judicial referral hearing can lead to additional charges, fines, imprisonment and more.

An undertaking can have an impact on your criminal record and future. While the undertaking itself does not constitute a criminal conviction, the additional charges you receive for non-compliance can lead to a criminal record.

This record can affect future employment opportunities, travel plans, and overall reputation. It may also influence judicial decisions in any subsequent legal matters, potentially leading to stricter conditions or sentences in future legal proceedings.

If you are released from custody via an undertaking, your first step should always be to call a law firm for professional legal services. Here’s how a lawyer can help:

1. Clarifying Legal Terms and Conditions: A lawyer can explain the legal jargon in the undertaking, so you fully understand your obligations. This includes interpreting any specific conditions like no-contact orders or territorial restrictions, and explaining their implications in everyday scenarios.
2. Legal Advice on Compliance: They provide tailored advice on how to comply with the conditions without infringing on your rights or daily activities. This might involve strategies to avoid potential situations where you could inadvertently breach the conditions.
3. Representation in Court: If you’re required to attend court, a lawyer will represent your interests and advocate on your behalf.
4. Negotiating with Prosecutors: Your lawyer can negotiate with the Crown prosecutor, possibly reducing charges or arguing for less restrictive conditions based on your specific circumstances.
5. Dealing with Breaches: In case of an alleged breach of your undertaking, a lawyer can defend you, potentially preventing additional legal consequences or criminal charges.

Criminal charges can have a long-lasting impact on your life, and although being released on an undertaking may provide you with some momentary relief, working with a lawyer gives you the best chance of minimizing the consequences you are facing.