Canadian Criminal Sentencing/Available Sentences/Conditional Sentences

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Introduction[edit]

A conditional sentence is a sentence of incarceration which is permitted to be served in the community under strict conditions, typically consisting of house arrest, for up to two years less a day.

The enabling provision states:

Imposing of conditional sentence
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;
(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that
(i) resulted in bodily harm,
(ii) involved the import, export, trafficking or production of drugs, or
(iii) involved the use of a weapon; and
(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:
(i) section 144 (prison breach),
(ii) section 264 (criminal harassment),
(iii) section 271 (sexual assault),
(iv) section 279 (kidnapping),
(v) section 279.02 (trafficking in persons — material benefit),
(vi) section 281 (abduction of person under fourteen),
(vii) section 333.1 (motor vehicle theft),
(viii) paragraph 334(a) (theft over $5000),
(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),
(x) section 349 (being unlawfully in a dwelling-house), and
(xi) section 435 (arson for fraudulent purpose).

1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1; 2007, c. 12, s. 1; 2012, c. 1, s. 34.

CCC


A Conditional Sentence Order (CSO) is a form of incarceration.[1]

The purpose of the conditional sentence is to reduce the reliance on incarceration as a sanction and increase restorative justice objectives.[2]

A CSO is not the same as probation. The former being punitive and rehabilitative while latter being only for rehabilitation.[3]

CSOs are usually better at achieving "the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community".[4]

  1. R. v. L.F.W. 1997 CanLII 10868 (NL CA), (1997), 155 Nfld. & P.E.I.R. 115(Nfld. C.A.)
    R. v. Oliver (E.M.) 1997 CanLII 14631 (NL CA), (1997), 147 Nfld. & P.E.I.R. 210 (Nfld. C.A.)
    R. v. Quality (R.) 1997 CanLII 14660 (NL CA), (1998), 156 Nfld. & P.E.I.R. 320 (Nfld. C.A.)
    R. v. J.M. 1998 CanLII 18034 (NL CA), (1998), 160 Nfld. & P.E.I.R. 38 (Nfld. C.A.)
  2. R v Proulx, 2000 SCC 5 at para. 127
  3. Proulx at para. 127
  4. Proulx at para. 127

Exempt Offences[edit]

Offences enumerated under s. 741.2 that are entirely exempt from CSOs include:

Mandatory Minimums

Max => 14 Years

Max 10 Years with Add'l Factors

Enumerated

  • Prison Breach by Indictment (742.1(f)(i))
  • criminal harassment by indictment (742.1(f)(ii))
  • sexual assault by indictment (742.1(f)(iii))
  • Kidnapping by Indictment (742.1(f)(iv))
  • Trafficking in Persons with Material Benefit by Indictment ((742.1(f)(v))
  • Abduction Under 14 Years by Indictment (742.1(f)(vi))
  • Motor Vehicle Theft by Indictment (742.1(f)(vii))
  • Theft Over $5,000 (742.1(f)(viii))
  • Break and Enter Other than Dwelling (742.1(f)(ix))
  • Being Unlawfully in a Dwelling (742.1(f)(x))
  • Arson for Fraudulent Purpose (742.1(f)(xi))

Eligibility[edit]

The requirements for a conditional sentence are summarized as follows: (R v Proulx, 2000 SCC 5 at para. 46)

  1. the offence has no mandatory minimums
  2. it is not a "serious personal injury offence"
  3. the appropriate sentence is one of less than two years
  4. a sentence in the community would not endanger the safety of the community
    1. in consideration of the risk of the offender reoffending; and,
    2. in consideration of the gravity of the damage that could follow a re-offence.
  5. the appropriate sentence consistent with the fundamental purpose and principles of sentencing

A conditional sentence, being a period of incarceration, can satisfy the principles of denunciation and deterrence. However, there is a comparative leniency in a conditional sentence when compared “to a jail term of equivalent duration.”[1]

A conditional sentence can be available to a person who is on parole.[2]

There is no presumption for or against CSOs.[3] However, it is considered "likely more appropriate" where a "combination of both punitive and restorative objectives" are to be achieved.[4]


  1. R. v. Proulx, 2000 SCC 61 at para. 102
  2. R. v. Harris, 2000 BCCA 599
  3. Proulx at para. 127
  4. Proux at para. 127

Mandatory Minimums[edit]

Mandatory minimum offences are not eligible for a conditional sentence. The offences with minimums are identifiable by the presence of the minimum within the definition of the offence.

See more: Canadian Criminal Sentencing/Available Sentences/Maximum and Minimum Sentences

Safety of Community[edit]

The sentencing judge should undertake a "risk assessment" to determine if the offender is a risk to the safety to the community.[1]

Assessing risk to the community is divided into two dimensions: 1) the risk of re-offence and 2) the gravity of the danger in the event of a re-offence.[2]

Risk of re-offence should be considered in light of potential "conditions attached to the sentence". Where there is a risk to the community, the risk may be minimized by imposing "appropriate conditions in the sentence." [3] Thus, a risk is acceptable as long as it is containable within the sentence.

Previous non-compliance with court orders is a "weighty factor" against the availability of a conditional sentence. They can be evidence that the offender is unlikely to comply and the sentence will not likely have a deterrent or rehabilitative effect.[4]

  1. see R. v. Soldat, 2012 MBCA 39 at para 14; R v Eckert, 2006 MBCA 6
  2. see R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780
  3. R v Knoblauch 2000 SCC 58 at 27
  4. R. v. Wright, 2011 ABCA 42 at para. 12
    see also R. v. Wilson 2009 ABCA 257 at 37
    R. v. Melvin, 2010 NSCA 5 at para. 9
    R. v. Viscomi, 2012 ABCA 135 R v. A.B., 2012 MBCA 25

Procedure[edit]

Imposing Conditions[edit]

Compulsory conditions of conditional sentence order
742.3 (1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:

(a) keep the peace and be of good behaviour;
(b) appear before the court when required to do so by the court;
(c) report to a supervisor
(i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
(ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
(e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

Optional conditions of conditional sentence order
(2) The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:

(a) abstain from
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription;
(b) abstain from owning, possessing or carrying a weapon;
(c) provide for the support or care of dependants;
(d) perform up to 240 hours of community service over a period not exceeding eighteen months;
(e) attend a treatment program approved by the province; and
(f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

CCC

It is generally expected that the terms of a CSO will include a restriction on liberty such as house arrest.[1]

742.3 ...

Obligations of court
(3) A court that makes an order under this section shall

(a) cause a copy of the order to be given to the offender;
(b) explain the substance of subsection (1) and sections 742.4 and 742.6 to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under section 742.4 for a change to the optional conditions; and
(d) take reasonable measures to ensure that the offender understands the order and the explanations.

For greater certainty
(4) For greater certainty, a failure to comply with subsection (3) does not affect the validity of the order.

...

Firearm, etc., prohibitions
742.2 (1) Before imposing a conditional sentence under section 742.1, the court shall consider whether section 109 or 110 is applicable.

Application of section 109 or 110
(2) For greater certainty, a condition of a conditional sentence order referred to in paragraph 742.3(2)(b) does not affect the operation of section 109 or 110.

...

CCC


Additional conditions requiring the offender to undergo treatment and then return to the court for a progress report has been found to be invalid as the court is functus officio and has no jurisdiction over the matter.[2]

  1. Proulx at para 127
  2. R v Ermine 2010 SKCA 47 (CanLII)

Conditional Sentence Breaches[edit]

Conditional sentence breaches are governed by s. 742.6, which states:

742.6 (1) The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice apply, with such modifications as the circumstances require, to proceedings under subsections (3) to (9), and any reference in those Parts to committing an offence shall be read as a reference to breaching a condition of a conditional sentence order.

(2) For the purpose of the application of section 515, the release from custody of an offender who is detained on the basis of an alleged breach of a condition of a conditional sentence order shall be governed by subsection 515(6).

(3) An allegation of a breach of condition may be heard by any court having jurisdiction to hear that allegation in the place where the breach is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the breach is alleged to have been committed, no proceedings in respect to that breach shall be instituted in that place without the consent of the Attorney General of that province, and any allegation of a breach shall be heard

(a) within thirty days after the offender's arrest, where a warrant was issued; or
(b) where a summons was issued, within thirty days after the issue of the summons.

(4) An allegation of a breach of condition must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses.

(5) No report shall be admitted in evidence unless the party intending to produce it has, before the hearing, given the offender reasonable notice and a copy of the report.

(6) Service of any report referred to in subsection (4) may be proved by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served it.

(7) Notwithstanding subsection (6), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of service.

(8) The offender may, with leave of the court, require the attendance, for cross-examination, of the supervisor or of any witness whose signed statement is included in the report.

(9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may

(a) take no action;
(b) change the optional conditions;
(c) suspend the conditional sentence order and direct
(i) that the offender serve in custody a portion of the unexpired sentence, and
(ii) that the conditional sentence order resume on the offender's release from custody, either with or without changes to the optional conditions; or
(d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

CCC

An allegation of breach is not a charged offence within the meaning of s. 11 of the Charter. Consequently, the reverse onus does not violate s. 11(d) and does not amount to double jeopardy.[1] Nor generally speaking is it a substantive criminal offence.[2]

An allegation of a breach of a conditional sentence stops the running of the conditional sentence. [3] A breach is not necessarily an independent offence, but rather is simply a claim to reconsider the terms of the conditional sentence under s. 742.6.[4]

A breach hearing must commence within 30 days of the allegation.[5]

Once a breach allegation is made, it should only be the judge who granted the initial conditional sentence can grant bail before the hearing.[6] It breach hearing itself is also usually heard in front of the same judge.[7]

  1. R v Casey (2000) 141 CCC (3d) 506
  2. R. v. Bailey, 2012 ABCA 165
  3. s. 742.6(10); R. v. Vromans, 2007 ABCA 36
  4. R. v. Proulx, at paras. 27 to 28
  5. s. 742.6(3); R. v. McIvor, 2008 SCC 11, [2008] 1 S.C.R. 285; R. v. Kabosos 2008 ONCA 711
  6. R. v. Gessleman, 2005 ABQB 628
  7. R. v. Tomic 2000 Alta CA

Hearing[edit]

To establish a breach, the crown must establish on a balance of probabilities that the offender breached the sentence.[1] Unless the accused proves on balance of probabilities that there was a reasonable excuse. (s. 742.6(9))

Report
The breach must be supported by a signed report of the supervisor, and where appropriate signed statements of the witnesses. (s.742.6(4)) The report is admissible if the offender is given reasonable notice of the intention to produce the document as well as the Report itself. (s. 742.6(5))

This does not preclude the crown from calling oral evidence.[2]

The accused may seek leave of the court to cross examine the supervisor or any other witness who signed a statement in the report. (742.6(8)) However, the accused must establish that cross-examination serves a useful purpose.[3]

  1. R. v. LeBorgne [2005] N.S.J. 493, 2005 NSCA 156 C. (R.) v. McDougall, [2008] 3 S.C.R. 41 (S.C.C.)
    Held to be constitutional, see R. v. Casey (2000), 141 C.C.C. (3d) 506 (Ont. C.A.) at paras. 25 - 40.
  2. R v Balaj (2010) 245 CCC (3d) 252 (SKCA)
  3. R v McIvor, [2008] 1 SCR 285

Disposition on Breach[edit]

If a breach is found, the presumption is for the offender to spend the remainder of the sentence in jail.[1] However, the disposition should turn on the particular circumstances.[2] It is the constant threat of encarceration that should compel compliance.[3]

A conditional sentence is suspended where the accused is ordered to serve another sentence in jail. (s. 742.7)

A judge cannot give an intermittent sentence for a breach of a conditional sentence order.[4]

  1. R. v. Proulx, [2000] 1 SCR 61 at para. 39
  2. R. v. Langley, 2005 BCCA 478
  3. see R. v. Brady 1998 ABCA 7, (1998), 121 C.C.C. (3d) 504 (Alta. C.A.)
  4. R v Langmaier, 2009 SKCA 57
    R v Ng, 2007 ONCA 183
    R. v. Bailey, 2012 ABCA 165

Sentence Variations[edit]

The Sentence Supervisor can recommend changes in the optional conditions of the Order where there is a change in circumstances. Notice of the proposed change must be provided to the court and counsel. It is generally understood that the changes should not be of a substantial nature that may change the purpose of the initial order. The application should not be initiated by the offender.[1]

Supervisor may propose changes to optional conditions
742.4 (1) Where an offender’s supervisor is of the opinion that a change in circumstances makes a change to the optional conditions desirable, the supervisor shall give written notification of the proposed change, and the reasons for it, to the offender, to the prosecutor and to the court.

Hearing
(2) Within seven days after receiving a notification referred to in subsection (1),

(a) the offender or the prosecutor may request the court to hold a hearing to consider the proposed change, or
(b) the court may, of its own initiative, order that a hearing be held to consider the proposed change,

and a hearing so requested or ordered shall be held within thirty days after the receipt by the court of the notification referred to in subsection (1).

Decision at hearing
(3) At a hearing held pursuant to subsection (2), the court

(a) shall approve or refuse to approve the proposed change; and
(b) may make any other change to the optional conditions that the court deems appropriate.

Where no hearing requested or ordered
(4) Where no request or order for a hearing is made within the time period stipulated in subsection (2), the proposed change takes effect fourteen days after the receipt by the court of the notification referred to in subsection (1), and the supervisor shall so notify the offender and file proof of that notification with the court.

Changes proposed by offender or prosecutor
(5) Subsections (1) and (3) apply, with such modifications as the circumstances require, in respect of a change proposed by the offender or the prosecutor to the optional conditions, and in all such cases a hearing must be held, and must be held within thirty days after the receipt by the court of the notification referred to in subsection (1).

Judge may act in chambers
(6) All the functions of the court under this section may be exercised in chambers.

1995, c. 22, s. 6; 1999, c. 5, s. 39.

CCC

A change of address cannot be done merely be calling and leaving a voicemail message on the supervisors machine.[2]

There is no mechanism within the Code to permit a CSO to be transferred to a jurisdiction outside of Canada.[3]

  1. R. v. Kobsar (2004), Alta QB
  2. R. v. Sullivan 2009 CanLII 59436 (NL PC)
  3. R. v. Goett, 2012 ABCA 215 (CanLII)

Prior to November 20, 2012[edit]

The previous version of s. 742.1 stated:

742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s compliance with the conditions imposed under section 742.3.

...

CCC

Serious Personal Injury Offences[edit]

On December 1, 2007, the Criminal Code was amended to exempt all "serious personal injury offences", as defined in s. 752, from consideration for Conditional Sentences prior to November 20, 2012:

752.

...

“serious personal injury offence” means

(a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
(i) the use or attempted use of violence against another person, or
(ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,

and for which the offender may be sentenced to imprisonment for ten years or more, or

(b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).

R.S., 1985, c. C-46, s. 752; 2008, c. 6, ss. 40, 61; 2010, c. 3, s. 8; 2012, c. 1, s. 35.

CCC

This has been found to exclude most robberies.[1]

See more at Canadian Criminal Sentencing/Long-term_and_Dangerous_Offender_Designation#Serious Personal Injury Offences

  1. R. v. Lebar, [2010] O.J. No 1133, 2010 ONCA 220
    c.f. R. v. Hendsbee, 2009 NSPC 50
    R. v. Sutherland, 2010 ONCJ 103

History[edit]

On November 20, 2012, s. 742.1 was amended to eliminate a number of types of offences that are eligible for CSOs. Also, there is no longer any consideration of whether an offence is a "serious personal injury" offence. (see <http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2012_1/FullText.html>) These amendments only apply to offences that occur after the amendments.