You have been released on a criminal undertaking in British Columbia—maybe with conditions like a curfew, a no-contact order, or a restriction on where you can go. But life moves fast, and sometimes those conditions do not fit your reality for long.
Maybe you got a new job, need to care for your children, or discovered your curfew cuts into your night shifts. Whatever the case, you might be asking yourself: is there anything I can do to change these conditions? The simple answer is yes; you can apply to vary your undertaking. However, it is not automatic, and you need to go through the proper channels.
Here is how undertaking’s work.
What is a Criminal Undertaking?
A criminal undertaking is a formal promise you make to the police or the court when you’re released after being charged with an offence. It’s often used instead of keeping someone in custody before their trial.
It includes conditions like:
- Attending court on a specific date
- Reporting to a bail supervisor
- Giving a fingerprinting date
- Not contacting certain people
- Staying away from specific places
- Following a curfew
- Abstaining from drugs or alcohol
It is a legally binding agreement. Violating it can result in a new criminal charge for breaching your conditions and can result in being held in custody for a bail hearing.
What Does It Mean to “Vary” an Undertaking?
To vary means to change the conditions of the undertaking—either to make them more flexible, remove certain conditions, or adjust them to better fit your situation.
You are not asking for your charges to go away, that comes once you attend the required court date per your undertaking. You are just requesting the court to consider tweaking the rules of your release so that they are more manageable. This is especially true if your situation has changed and you are setting yourself up to breach your conditions if they were to remain the same.
When Might Someone Want to Vary an Undertaking?
There are several different scenarios in which an accused person released on an undertaking may want to vary that undertaking.
Some common situations include:
- You have started a new job that conflicts with a curfew
- You need to see or contact someone who is listed in a no-contact order (e.g., for co-parenting)
- You have moved, and your new address does not comply with the original release plan
- You have travel plans or health needs that conflict with conditions
How to Apply to Vary a Criminal Undertaking in BC
Varying an undertaking can be a confusing process, particularly if you are doing so prior to your first court appearance. Navigating this process can be difficult and getting a lawyer to assist is likely in your best interest.
To vary an undertaking, you first need to file an Application to a Judge making the request to the court. That application then needs to be served on the Crown for review. The court will then schedule a date for the application in front of a judge once they have received the reviewed application form back from the Crown.
This review can take some time, especially if you are applying to vary your undertaking before your charges are sworn and you have had your first court date. The Crown may still need to get the report from the police and review the report before making a decision. They also may need to contact the complainant or other party to assess their wishes and possible risk.
Once the Crown has assessed their file, they will form a position on the application. This may be to consent to the requested variation, to consent in part to the requested variation, or to oppose the variation. If opposed, the accused can go in front of a judge to make their application, and the judge will ultimately determine if they will grant the application or not.
You may not like the position the Crown takes. You may not like the decision the Judge makes. However, you are bound by the conditions until you are advised by the court that you no longer need to abide by them.
Are you wanting to vary the conditions of your undertaking? Contact us at Acumen Law for a free consultation at 604-685-8889.