Terms and Conditions of a Conditional Sentence Order

From Criminal Law Notebook

General Principles

For the conditional sentence regime to maintain the public's confidence the terms must "have teeth" by including restrictions upon liberty.[1]

  1. ↑ R v Hirnschall, 2003 CanLII 46450 (ON CA), per Laskin JA, at para 28

Mandatory Conditions

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.

[(1.1) to (1.3) repealed, 2019, c. 25, s. 303]

[omitted (2), (3), (4), (5), (6), (7), (8), (9) and (10)]
1995, c. 22, s. 6; 2008, c. 18, s. 40; 2011, c. 7, s. 5; 2014, c. 21, s. 3; 2015, c. 13, s. 33; 2019, c. 25, s. 303.

– CCC

Note up: 742.3(1)

Optional Conditions

742.3
[omitted (1), (1.1), (1.2) and (1.3)]

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 the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;
(a.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, the supervisor or someone designated under subsection (7) [regulations re obtaining bodily substances – designation of authorized persons] to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to suspect that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(a.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by the supervisor in a notice in Form 51 [forms] served on the offender, if a condition of the order requires the offender to abstain from the consumption of drugs, alcohol or any other intoxicating substance;
(a.3) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order or from going to any place or geographic area specified in the order, except in accordance with any specified conditions that the justice considers necessary;
(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) [power to make regulations re restitution], 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.

[omitted (3), (4), (5), (6), (7), (8), (9) and (10)]
1995, c. 22, s. 6; 2008, c. 18, s. 40; 2011, c. 7, s. 5; 2014, c. 21, s. 3; 2015, c. 13, s. 33; 2019, c. 25, s. 303.

– CCC

Note up: 742.3(2)

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

  1. ↑ R v Proulx, [2000] 1 SCR 61, 2000 SCC 5 (CanLII), per Lamer CJ, at para 127

Bodily Substance Terms

742.3
[omitted (1), (1.1), (1.2), (1.3), (2), (3), (4)]

Notice — samples at regular intervals

(5) The notice referred to in paragraph (2)(a.2) [CSO conditions – bodily substance on regular intervals] must specify the places and times at which and the days on which the offender must provide samples of a bodily substance under a condition described in that paragraph. The first sample may not be taken earlier than 24 hours after the offender is served with the notice, and subsequent samples must be taken at regular intervals of at least seven days.

Designations and specifications

(6) For the purposes of paragraphs (2)(a.1) [CSO conditions – bodily substance on reasonable grounds] and (a.2) [CSO conditions – bodily substance on regular intervals] and subject to the regulations, the Attorney General of a province or the minister of justice of a territory shall, with respect to the province or territory,

(a) designate the persons or classes of persons that may take samples of bodily substances;
(b) designate the places or classes of places at which the samples are to be taken;
(c) specify the manner in which the samples are to be taken;
(d) specify the manner in which the samples are to be analyzed;
(e) specify the manner in which the samples are to be stored, handled and destroyed;
(f) specify the manner in which the records of the results of the analysis of the samples are to be protected and destroyed;
(g) designate the persons or classes of persons that may destroy the samples; and
(h) designate the persons or classes of persons that may destroy the records of the results of the analysis of the samples.


Further designations

(7) For the purpose of paragraph (2)(a.1) [CSO conditions – bodily substance on reasonable grounds] and subject to the regulations, the Attorney General of a province or the minister of justice of a territory may, with respect to the province or territory, designate persons or classes of persons to make a demand for a sample of a bodily substance.

Restriction

(8) Samples of bodily substances referred to in paragraphs (2)(a.1) [CSO conditions – bodily substance on reasonable grounds] and (a.2) [CSO conditions – bodily substance on regular intervals] may not be taken, analyzed, stored, handled or destroyed, and the records of the results of the analysis of the samples may not be protected or destroyed, except in accordance with the designations and specifications made under subsection (6) [govt must make regulations re obtaining bodily substances].

Destruction of samples

(9) The Attorney General of a province or the minister of justice of a territory, or a person authorized by the Attorney General or minister, shall cause all samples of bodily substances provided under a conditional sentence order to be destroyed within the periods prescribed by regulation, unless the samples are reasonably expected to be used as evidence in proceedings under section 742.6 [procedure on breach of condition].

Regulations

(10) The Governor in Council may make regulations

(a) prescribing bodily substances for the purposes of paragraphs (2)(a.1) [CSO conditions – bodily substance on reasonable grounds] and (a.2) [CSO conditions – bodily substance on regular intervals];
(b) respecting the designations and specifications referred to in subsections (6) [govt must make regulations re obtaining bodily substances] and (7) [regulations re obtaining bodily substances – designation of authorized persons];
(c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (9) [destruction of samples]; and
(d) respecting any other matters relating to the samples of bodily substances.

1995, c. 22, s. 6; 2008, c. 18, s. 40; 2011, c. 7, s. 5; 2014, c. 21, s. 3; 2015, c. 13, s. 33.
[annotation(s) added]

– CCC

Note up: 742.3(5), (6), (7), (8), (9), and (10)

Prohibition on use of bodily substance

742.31 (1) No person shall use a bodily substance provided under a conditional sentence order except for the purpose of determining whether an offender is complying with a condition of the order that they abstain from the consumption of drugs, alcohol or any other intoxicating substance.

Prohibition on use or disclosure of result

(2) Subject to subsection (3) [prohibition on use substance or analysis obtained by conditional sentence], no person shall use, disclose or allow the disclosure of the results of the analysis of a bodily substance provided under a conditional sentence order.

Exception

(3) The results of the analysis of a bodily substance provided under a conditional sentence order may be disclosed to the offender to whom they relate, and may also be used or disclosed in the course of proceedings under section 742.6 [procedure on breach of condition] or, if the results are made anonymous, for statistical or other research purposes.

Offence

(4) Every person who contravenes subsection (1) [prohibition on use of bodily substance obtained by conditional sentence] or (2) [prohibition on use or disclosure of analysis results obtained by conditional sentence] is guilty of an offence punishable on summary conviction.
2011, c. 7, s. 6.
[annotation(s) added]

– CCC

Note up: 742.31(1), (2), (3), and (4)

"Optional Conditions"
Definitions

742 In sections 742.1 to 742.7 [provisions re conditional sentence orders],
...
"optional conditions" means the conditions referred to in subsection 742.3(2) [CSO conditions – optional conditions]; (conditions facultatives)
...
R.S., 1985, c. C-46, s. 742; R.S., 1985, c. 27 (1st Supp.), s. 165; 1992, c. 11, s. 15; 1995, c. 22, s. 6.
[annotation(s) added]

– CCC

Note up: 742

Procedure

742.3
[omitted (1), (1.1), (1.2), (1.3), (2)]

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 and, on request, to the victim;
(b) explain the substance of subsection (1) [CSO conditions – mandatory conditions] and sections 742.4 [supervisor changing optional conditions] and 742.6 [procedure on breach of condition] 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) [obligation to explain CSO] does not affect the validity of the order.

[omitted (5), (6), (7), (8), (9) and (10)]
1995, c. 22, s. 6; 2008, c. 18, s. 40; 2011, c. 7, s. 5; 2014, c. 21, s. 3; 2015, c. 13, s. 33; 2019, c. 25, s. 303.
[annotation(s) added]

– CCC

Note up: 742.3(3) and (4)

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.[1]

"change"
Definitions

742 In sections 742.1 to 742.7 [provisions re conditional sentence orders],
"change", in relation to optional conditions, includes deletions and additions; (modification)
...
R.S., 1985, c. C-46, s. 742; R.S., 1985, c. 27 (1st Supp.), s. 165; 1992, c. 11, s. 15; 1995, c. 22, s. 6.
[annotation(s) added]

– CCC

Note up: 742

"supervisor"
Definitions

742 In sections 742.1 to 742.7 [provisions re conditional sentence orders],

...
"supervisor" means a person designated by the Attorney General, either by name or by title of office, as a supervisor for the purposes of sections 742.1 to 742.7 [provisions re conditional sentence orders]. (agent de surveillance)
R.S., 1985, c. C-46, s. 742; R.S., 1985, c. 27 (1st Supp.), s. 165; 1992, c. 11, s. 15; 1995, c. 22, s. 6.
[annotation(s) added]

– CCC

Note up: 742

  1. ↑ R v Ermine, 2010 SKCA 47 (CanLII), per Ottenbreit JA

Firearms Prohibition Orders

Firearm, etc., prohibitions

742.2 (1) Before imposing a conditional sentence under section 742.1 [conditional sentence orders], the court shall consider whether section 109 [mandatory weapons prohibition order] or 110 [discretionary weapons prohibition order] 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) [CSO conditions – weapon prohibition] does not affect the operation of section 109 [mandatory weapons prohibition order] or 110 [discretionary weapons prohibition order].
1995, c. 22, s. 6; 2002, c. 13, s. 75; 2004, c. 12, s. 14(E).
[annotation(s) added]

– CCC

Note up: 742.2(1) and (2)


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