Conditional Sentence Breaches

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General Principles

Conditional sentence breaches are governed by s. 742.6 which outlines the procedure of determining whether breaches occurred and their consequences when found.

An allegation of a breach of a conditional sentence stops the running of the conditional sentence. [1] 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.[2]

A breach hearing must commence within 30 days of the allegation.[3] The time starts at the point of arrest for the breach, not when the warrant is issued or at the time of arrest for new offence.[4]

Once a breach allegation is made, it should only be the judge who granted the initial conditional sentence can grant bail before the hearing.[5] The breach hearing itself is also usually heard in front of the same judge.[6]

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.[7] Nor, generally speaking, is it a substantive criminal offence.[8]

  1. s. 742.6(10); R v Vromans, 2007 ABCA 36 (CanLII)
  2. R v Proulx, [2000] 1 SCR 61, 2000 SCC 5 (CanLII) at paras 27 to 28
  3. s. 742.6(3)
    R v McIvor, 2008 SCC 11 (CanLII), [2008] 1 SCR 285
    R v Kabosos 2008 ONCA 711 (CanLII)
  4. Kabosos
  5. R v Gessleman, 2005 ABQB 628 (CanLII)
  6. R v Tomic, 2000 ABCA 192 (CanLII)
  7. R v Casey, 2000 CanLII 5626 (ON CA), (2000) 141 CCC (3d) 506
    R v Thompson, 2014 ONCA 43 (CanLII) at para 29
  8. R v Bailey, 2012 ABCA 165 (CanLII)
    R v Thompson, at para 29 ("Breach of a condition of a CSO is not an offence")

Laying a Breach Allegation, Compelling Attendance and Bail

Procedure on breach of condition
742.6 (1) For the purpose of proceedings under this section,

(a) the provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice apply, with any modifications that the circumstances require, 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;
(b) the powers of arrest for breach of a condition are those that apply to an indictable offence, with any modifications that the circumstances require, and subsection 495(2) does not apply;
(c) despite paragraph (a), if an allegation of breach of condition is made, the proceeding is commenced by
(i) the issuance of a warrant for the arrest of the offender for the alleged breach,
(ii) the arrest without warrant of the offender for the alleged breach, or
(iii) the compelling of the offender’s appearance in accordance with paragraph (d);
(d) if the offender is already detained or before a court, the offender’s appearance may be compelled under the provisions referred to in paragraph (a);
(e) if an offender is arrested for the alleged breach, the peace officer who makes the arrest, the officer in charge or a judge or justice may release the offender and the offender’s appearance may be compelled under the provisions referred to in paragraph (a); and
(f) any judge of a superior court of criminal jurisdiction or of a court of criminal jurisdiction or any justice of the peace may issue a warrant to arrest no matter which court, judge or justice sentenced the offender, and the provisions that apply to the issuance of telewarrants apply, with any modifications that the circumstances require, as if a breach of condition were an indictable offence.

Interim release
(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).

...
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41.


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Effect of Allegations on CSO

742.6
...
Warrant or arrest — suspension of running of conditional sentence order
(10) The running of a conditional sentence order imposed on an offender is suspended during the period that ends with the determination of whether a breach of condition had occurred and begins with the earliest of

(a) the issuance of a warrant for the arrest of the offender for the alleged breach,
(b) the arrest without warrant of the offender for the alleged breach, and
(c) the compelling of the offender’s appearance in accordance with paragraph (1)(d).

Conditions continue
(11) If the offender is not detained in custody during any period referred to in subsection (10), the conditions of the order continue to apply, with any changes made to them under section 742.4, and any subsequent breach of those conditions may be dealt with in accordance with this section.
Detention under s. 515(6)
(12) A conditional sentence order referred to in subsection (10) starts running again on the making of an order to detain the offender in custody under subsection 515(6) and, unless section 742.7 applies, continues running while the offender is detained under the order.
Earned remission does not apply
(13) Section 6 of the Prisons and Reformatories Act does not apply to the period of detention in custody under subsection 515(6).
Unreasonable delay in execution
(14) Despite subsection (10), if there was unreasonable delay in the execution of a warrant, the court may, at any time, order that any period between the issuance and execution of the warrant that it considers appropriate in the interests of justice is deemed to be time served under the conditional sentence order unless the period has been so deemed under subsection (15).
...

1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41.


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Proving a Breach

742.6
...
Hearing
(3) The hearing of an allegation of a breach of condition shall be commenced within thirty days, or as soon thereafter as is practicable, after

(a) the offender’s arrest; or
(b) the compelling of the offender’s appearance in accordance with paragraph (1)(d).

Place
(3.1) The allegation 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 the offender is found, arrested or in custody.
Attorney General’s consent
(3.2) If the place where the offender is found, arrested or in custody is outside the province in which the breach is alleged to have been committed, no proceedings in respect of that breach shall be instituted in that place without

(a) the consent of the Attorney General of the province in which the breach is alleged to have been committed; or
(b) the consent of the Attorney General of Canada, if the proceedings that led to the issuance of the conditional sentence order were instituted by or on behalf of the Attorney General of Canada.

...
(6) and (7) [Repealed, 2008, c. 18, s. 41]
...
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41.


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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".[2]

  1. R v LeBorgne [2005] NSJ 493, 2005 NSCA 156 (CanLII)
    C. (R.) v McDougall, [2008] 3 SCR 41, 2008 SCC 53 (CanLII)
    Held to be constitutional, see R v Casey, 2000 CanLII 5626 (ON CA), (2000), 141 CCC (3d) 506 (Ont. C.A.) at paras 25 - 40.
  2. See 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.[1]

The report is admissible if the offender is given reasonable notice of the intention to produce the document as well as the Report itself. [2]

Section 742.6(4) provides an evidentiary "short cut” to proof of the breach allegation. If the report is defective by missing a signature the crown can still prove the breach by viva voce evidence.[3]

The accused may seek leave of the court to cross examine the supervisor or any other witness who signed a statement in the report.[4] However, the accused must establish that cross-examination serves a useful purpose.[5]

  1. s.742.6(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.")
  2. s. 742.6(5) ("The report is admissible in evidence if the party intending to produce it has, before the hearing, given the offender reasonable notice and a copy of the report.")
  3. R v Balaj (2010) 245 CCC (3d) 252 (SKCA) (*no link)
  4. 742.6(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. ")
  5. R v McIvor, [2008] 1 SCR 285, 2008 SCC 11 (CanLII)

Disposition on Breach

742.6
...
Powers of court
(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.

...
Powers of court
(16) If a 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, in exceptional cases and in the interests of justice, order that some or all of the period of suspension referred to in subsection (10) is deemed to be time served under the conditional sentence order.
Considerations
(17) In exercising its discretion under subsection (16), a court shall consider

(a) the circumstances and seriousness of the breach;
(b) whether not making the order would cause the offender undue hardship based on the offender’s individual circumstances; and
(c) the period for which the offender was subject to conditions while the running of the conditional sentence order was suspended and whether the offender complied with those conditions during that period.

1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41.


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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 incarceration 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, 2000 SCC 5 (CanLII) at para 39
  2. R v Langley, 2005 BCCA 478 (CanLII)
  3. see R v Brady 1998 ABCA 7 (CanLII), (1998), 121 CCC (3d) 504 (Alta. C.A.)
  4. R v Langmaier, 2009 SKCA 57 (CanLII)
    R v Ng, 2007 ONCA 183 (CanLII)
    R v Bailey, 2012 ABCA 165 (CanLII)

Effect of Dismissal or Excusal of Allegation

Allegation dismissed or reasonable excuse
(15) If the allegation is withdrawn or dismissed or the offender is found to have had a reasonable excuse for the breach, the sum of the following periods is deemed to be time served under the conditional sentence order:

(a) any period for which the running of the conditional sentence order was suspended; and
(b) if subsection (12) applies, a period equal to one half of the period that the conditional sentence order runs while the offender is detained under an order referred to in that subsection.

...
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41.


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