- 1 Introduction
- 2 Eligibility
- 3 Procedure
- 4 Conditional Sentence Breaches
- 5 Effect of Custody on Other Matters
- 6 Sentence Variations
- 7 Transfer CSOs to different Provinces
- 8 History
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:
A Conditional Sentence Order (CSO) is a form of incarceration.
The purpose of the conditional sentence is to reduce the reliance on incarceration as a sanction and increase restorative justice objectives.
A CSO is not the same as probation. The former being punitive and rehabilitative while latter being only for rehabilitation.
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".
The restrictions on conditional sentences for offences with a maximum penalty of 14 years does not violate s. 12 of the Charter for being cruel and unusual punishment.
- Appellate Review
The decision to order a conditional sentence is entitled to "considerable deference".
R v LFW, 1997 CanLII 10868 (NL CA), (1997), 155 Nfld. & P.E.I.R. 115(Nfld. C.A.), per Marshall JA
R v Oliver (E.M.), 1997 CanLII 14631 (NL CA), (1997), 147 Nfld. & P.E.I.R. 210 (Nfld. C.A.), per Cameron JA
R v Quality (R.), 1997 CanLII 14660 (NL CA), (1998), 156 Nfld. & P.E.I.R. 320 (Nfld. C.A.), per Gushue JA
R v JM, 1998 CanLII 18034 (NL CA), (1998), 160 Nfld. & P.E.I.R. 38 (Nfld. C.A.), per Green JA
- R v Proulx,  1 SCR 61, 2000 SCC 5 (CanLII), per Lamer CJ, at para 127
- Proulx, ibid., at para 127
- Proulx, ibid., at para 127
- R v Neary, 2016 SKQB 218 (CanLII), per RS Smith J - related to drug trafficking offences
R v Peterson, 2005 CanLII 37972 (ON CA), per Weiler JA, at para 58
R v Rage, 2018 ONCA 211 (CanLII), per curiam, at para 10 ("It is well established in the jurisprudence that a trial judge’s decision regarding the appropriateness of a conditional sentence is entitled to considerable deference")
Statutory Exempt Offences Under s. 742.1(f)(i)
Offences enumerated under s. 742.1 that are entirely exempt from CSOs when prosecuted by indictment consist of:
- 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))
See Offences by Penalty for a complete list of offences that would be subject to exemption due to maximum penalties of 10 (with bodily harm, weapons or drugs) or 14 years.
The requirements for a conditional sentence are summarized as follows:
- the offence has no mandatory minimums
- the offence does not have a maximum penalty of 14 or life
- the offence does not have a maximum penalty of 10 years that
- is a terrorism offence, or a criminal organization offence,
- involves bodily harm,
- involves the import, export, trafficking or production of drugs, or
- involves the use of a weapon
- the offence is not enumerated in s. 742.1(f)
- the appropriate sentence is one of less than two years
- a sentence in the community would not endanger the safety of the community
- in consideration of the risk of the offender reoffending; and,
- in consideration of the gravity of the damage that could follow a re-offence.
- 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.”
A conditional sentence can be available to a person who is on parole.
The restrictions on conditional sentences for certain classes of offences does not violate s. 7 or 12 of the Charter.
- R v Proulx, 2000 SCC 5 (CanLII), per Lamer CJ, at para 46 - citing the old test pre 2012 amendments
- Proulx, ibid., at para 102
- R v Harris, 2000 BCCA 599 (CanLII), per Ryan JA
- Proulx, supra, at para 127
- Proux, supra, at para 127
R v Barrons, 2017 NSSC 368 (CanLII), per Arnold J
R v DeYoung, 2017 NSCA 13 (CanLII), per Farrar JA
R v Sawh, 2016 ONSC 7797 (CanLII), per Garton J
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.
Less Than Two Years
Before a judge can impose a conditional sentence the judge must be satisfied that both prison and probation are not appropriate.
Safety of Community
The sentencing judge should undertake a "risk assessment" to determine if the offender is a risk to the safety to the community.
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.
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."  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.
see R v Soldat, 2012 MBCA 39 (CanLII), per M Monnin JA, at para 14
R v Eckert, 2006 MBCA 6 (CanLII), per Steel JA
- see R v Knoblauch, 2000 SCC 58 (CanLII),  2 SCR 780, per Arbour J (5:4)
- Knoblauch, ibid., at para 27
R v Wright, 2011 ABCA 42 (CanLII), per McDonald JA, at para 12
see also R v Wilson, 2009 ABCA 257 (CanLII), per curiam at 37
R v Melvin, 2010 NSCA 5 (CanLII), per Bateman JA, at para 9
R v Viscomi, 2012 ABCA 135 (CanLII), per curiam
R v AB, 2012 MBCA 25 (CanLII), per Chartier JA
Conditional Sentence Breaches
Effect of Custody on Other Matters
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.
A change of address cannot be done merely be calling and leaving a voicemail message on the supervisor's machine.
There is no mechanism within the Code to permit a CSO to be transferred to a jurisdiction outside of Canada.