When a smirk is a crime: prohibited contact in bail conditions

When a court releases someone on bail while their charges are pending, it almost always imposes conditions. One of the most common is a no-contact condition: an order not to communicate, directly or indirectly, with the complainant or some other witness in the case. Breaching that condition is itself a criminal offence under section 145 of the Criminal Code.

But what actually counts as "communication"? A recent decision from Ontario's Court of Appeal gives us a broad answer. In R v Robinson, 2026 ONCA 516, the Court upheld a conviction for failing to comply with a release order based on a facial expression that lasted a matter of seconds.

What Happened

Mr. Robinson was facing human trafficking charges and was subject to a release order prohibiting him from communicating with the complainant. On the eve of his trial, a man approached the complainant at a residence and turned his phone toward her. The man was on a FaceTime call with Mr. Robinson, and the complainant could now see Mr. Robinson on the screen.

Mr. Robinson was visible for somewhere between five and ten seconds. He said nothing. He gestured at nothing. But when he saw the complainant, he smirked.

That was the entire basis of the conviction. The trial judge found Mr. Robinson guilty of breaching his release order, and the Court of Appeal held that this conclusion was reasonable and available on the evidence.

The Court's Reasoning: Expressions Communicate

In dismissing the appeal, the Robinson court observed that it is a matter of common sense that when a facial expression is directed at someone, it is inherently a form of communication. The key issue was intention. A no-contact order prohibits intentional communication — an accidental encounter is not an offence. Here, the trial judge was entitled to find that Mr. Robinson knew the phone's camera and screen were pointed at the complainant, and that in smirking at her, he was intentionally communicating with her in violation of his release order.

The short duration did not matter. Neither did the absence of words. What mattered was that Mr. Robinson understood he was being seen by the complainant and made an expression directed at her.

Why This Decision Matters

Robinson is a short judgment, but it makes a point worth understanding clearly: "communication" in a bail condition is not limited to speaking, writing, or messaging. It extends to any conduct through which a person intentionally conveys something to another. A look can qualify. A gesture can qualify. A smirk can qualify.

This holding reflects the purpose of no-contact conditions. They exist because the person they protect has been identified as potentially vulnerable to intimidation, pressure, or interference — particularly on the eve of a trial where their testimony is central. A wordless expression directed at a complainant days before she is to testify can carry a great deal of meaning. The law does not require the Crown to prove what that meaning was. It requires only that the communication was intentional.

What This Means If You Are on a Release Order

For anyone released on bail with a no-contact condition, Robinson holds a key, pratical takeway. Defence lawyers have always given clients the same advice about accidental encounters in public: if you see the complainant, turn around and walk away. Do not speak. Do not nod. Do not make eye contact and hold it. Leave.

Robinson extends that advice into the digital world. If you find yourself unexpectedly on a video call, a livestream, or a group chat where the complainant appears, end the call immediately. Hang up. Do not wait to see what happens. The consequence of intentionally remaining on the call could be a criminal conviction.

This case comment should not be taken as legal advice. Every release order is different, and every situation requires specific review. If you need advice about whether a given situation could amount to a breach of bail, you should consult a criminal lawyer immediately.

A Note on the Stakes

Breach charges are sometimes treated as minor by the people facing them. They should not be. A breach is a criminal conviction. It can result in bail being revoked, meaning you spend the rest of your case in custody. It can be used against you at any future bail hearing. And it can significantly affect how a sentencing judge views you if you are ultimately convicted of the underlying offence — because a breach suggests to a court that you cannot be trusted to follow its orders.

If you are on a release order and you are unsure whether something you did — or something that happened around you — might constitute a breach, speak to your lawyer immediately. It is far better to address the issue early than to have it surface as a new charge.