Conditional Sentence Breaches

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2023. (Rev. # 95745)

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 usually, but not necessarily, heard in front of the same judge.[6]

Nature of Breach Hearing

A breach hearing is an "aspect" of sentencing.[7] It is not considered a separate "offence."[8]

Some authority states that the breach hearing is not a rehearing of the original sentence.[9] The hearing judge is not permitted to lengthen the original sentence or impose any different sentence.[10] There is only jurisdiction to assess the breach and impose permitted consequences found in the section.[11] Generally the court can only "deal with the unexpired part of the conditional sentence" as prescribed in s. 742.6(9).[12]

By contrast some authority states that the breach hearing is a continuation of the sentencing hearing and a breach can be used to vary the original sentenced based on new aggravating factors.[13]

Evidence

It is uncertain whether the exception to hearsay under s. 723 applies to a breach hearing.[14]

Constitutionality

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.[15] Nor, generally speaking, is it a substantive criminal offence.[16]

  1. ↑ s. 742.6(10); R v Vromans, 2007 ABCA 36 (CanLII), per Fraser JA
  2. ↑ R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ, at paras 27 to 28
  3. ↑ s. 742.6(3)
    R v McIvor, 2008 SCC 11 (CanLII), [2008] 1 SCR 285, per Charron J
    R v Kabosos, 2008 ONCA 711 (CanLII), 238 CCC (3d) 428, per MacPherson JA
  4. ↑ Kabosos, ibid.
  5. ↑ R v Gessleman, 2005 ABQB 628 (CanLII), per Watson JA
  6. ↑ R v Tomic, 2000 ABCA 192 (CanLII), 147 CCC (3d) 567, per curiam
    R v Casey, 2000 CanLII 5626 (ON CA), 141 CCC (3d) 506, per Osborne JA, at para 42
  7. ↑ Casey, supra
    R v Whitty, 1999 CanLII 18919 (NL CA), 135 CCC (3d) 77, per Gushue JA
    R v LeBorgne, 2005 NSCA 156 (CanLII), 204 CCC (3d) 177, per Cromwell JA, at para 17
  8. ↑ R v Gessleman, 2005 ABQB 628 (CanLII), per Watson J, at para 9
  9. ↑ Tomic, ibid., at para 15
  10. ↑ Tomic, ibid., at para 15
    Casey, supra, at para 28
  11. ↑ Tomic, supra, at para 15
  12. ↑ Casey, supra at para 13
    Tomic, supra
  13. ↑ R v Carpentier, 2005 MBCA 134 (CanLII), per Steel J, at para 36
  14. ↑ R v LeBorgne, 2005 NSCA 156 (CanLII), 204 CCC (3d) 177, per Cromwell JA
  15. ↑ Casey, ibid.
    R v Thompson, 2014 ONCA 43 (CanLII), 305 CCC (3d) 218, per Watt JA, at para 29
  16. ↑ R v Bailey, 2012 ABCA 165 (CanLII), 289 CCC (3d) 280, per Martin JA
    Thompson, supra, 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 [Pt. XVI – Compelling Appearance of an Accused Before a Justice and Interim Release (ss. 493 to 529.5)] and XVIII [Pt. XVIII – Procedure on Preliminary Inquiry (ss. 535 to 551)] 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) [public interest exception to arrest power] 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 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.
Warrant — means of telecommunication

(1.1) A warrant may be issued under paragraph (1)(f) [power to issue arrest warrant] by a means of telecommunication, and the provisions in section 487.1 [telewarrants] on the issuance of a warrant apply for those purposes, with any necessary modifications.

Interim release

(2) For the purpose of the application of section 515 [judicial interim release provisions], 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) [reverse onus offences].
[omitted (3), (3.1), (3.2), (3.3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13), (14), (15), (16) and (17)]
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41; 2019, c. 25, s. 304; 2022, c. 17, s. 49.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 742.6(1) and (2)

Effect of Allegations on CSO

742.6
[omitted (1), (2), (3), (3.1), (3.2), (3.3), (4), (5), (6), (7), (8) and (9)]

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) [warrant or arrest – suspension of running of conditional sentence order], the conditions of the order continue to apply, with any changes made to them under section 742.4 [supervisor changing optional conditions], and any subsequent breach of those conditions may be dealt with in accordance with this section.
[omitted (12) and (13)]

Unreasonable delay in execution

(14) Despite subsection (10) [warrant or arrest – suspension of running of conditional sentence order], 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) [allegations dismissed or reasonable excuse found].
[omitted (15), (16) and (17)]
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41; 2019, c. 25, s. 304; 2022, c. 17, s. 49.


[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 742.6(10), (11) and (14)

Remand Credit

See also: Remand Credit
Conditional Sentence Continues

742.6
[omitted (1), (2), (3), (3.1), (3.2), (3.3), (4), (5), (6), (7), (8), (9), (10) and (11)]

Detention under s. 515(6)

(12) A conditional sentence order referred to in subsection (10) [Warrant or arrest — suspension of running of conditional sentence order] starts running again on the making of an order to detain the offender in custody under subsection 515(6) [reverse onus offences] and, unless section 742.7 [imprisoned on new offence while on conditional sentence] 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) [reverse onus offences].
[omitted (14), (15), (16) and (17)]
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41; 2019, c. 25, s. 304; 2022, c. 17, s. 49.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 742.6(12) and (13)

The purpose of s. 742.6 is to relieve against the "harshness of the result of the offender being in custody" while serving his sentence.[1]

Under s. 742.6(12), the conditional sentence continues while the accused is remanded. However, by function of (13), there is no remission credit.[2] Once the Court finds a breach, the remission credit accrues.[3]

  1. ↑ R v Atkinson, 2003 CanLII 17467 (ON CA), 174 CCC (3d) 144, per Rosenberg JA, at para 17 ("Section 742.6(12) relieves against the harshness of the result of the offender being in custody by providing that the conditional sentence begins to run again "on the making of an order to detain the offender in custody under subsection 515(6)".")
  2. ↑ Atkinson, ibid., at para 17 ("The sentence continues to run while the offender is detained under that order. However, pursuant to s. 742.6(13)... the offender does not receive any remission for any time spent in custody on the detention order.")
  3. ↑ Atkinson, ibid., at para 17 ("Once the judge makes the breach determination and decides that the offender should serve some or the balance of the sentence in custody, the Prisons and Reformatories Act would apply and the offender would get remission on that part of the sentence remaining to be served in custody.")

Proving a Breach

742.6
[omitted (1) and (2)]

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.
Adjournment

(3.3) A judge may, at any time during a hearing of an allegation of breach of condition, adjourn the hearing for a reasonable period.

Report of supervisor

(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.

Admission of report on notice of intent

(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.
(6) and (7) [Repealed, 2008, c. 18, s. 41]

Requiring attendance of supervisor or witness

(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.
[omitted (9), (10), (11), (12), (13), (14), (15), (16) and (17)]
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41; 2019, c. 25, s. 304; 2022, c. 17, s. 49.

– CCC (CanLII), (DOJ)

Note up: 742.6(3), (3.1), (3.2), (3.3), (4), (5), and (8)

Timing

Once a breach allegation is made, the proceedings must be commenced within 30 days or within a period soon thereafter "as is practicable."[1]

There is "urgency" to prove a breach.[2]

Failure to determine the breach within the proper time results in a loss of jurisdiction to determine the breach.[3]

Standard of Proof

To establish a breach, the crown must establish on a balance of probabilities that the offender breached the sentence.[4] Unless the accused proves on balance of probabilities that there was "a reasonable excuse."[5]

  1. ↑ R v McIvor, 2008 SCC 11 (CanLI) (working hyperlinks pending), at para 18
  2. ↑ R. v. Morgan, [2017] O.J. No. 7167 at paras 26 to 27
    R v Greville, 2002 CanLII 44901 (ON CA) (working hyperlinks pending), per Weiler JA, at para 17
  3. ↑ R v Lajoie, 2020 BCPC 281 (CanLII), per Chettiar J, at paras 30 to 31
  4. ↑ R v LeBorgne, 2005 NSCA 156 (CanLII), [2005] NSJ 493, per Cromwell JA (3:0)
    C(R) v McDougall, 2008 SCC 53 (CanLII), [2008] 3 SCR 41, per Rothstein J (7:0)
    Held to be constitutional, see R v Casey, 2000 CanLII 5626 (ON CA), 141 CCC (3d) 506, per Osborne JA (3:0), at paras 25 to 40
  5. ↑ 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 (*no CanLII links)
  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 SCC 11 (CanLII), [2008] 1 SCR 285, per Charron J (7:0)

Disposition on Breach

A finding of a breach is not a separate and new criminal offence.[1]

742.6
[omitted (1), (2), (3), (3.1), (3.2), (3.3), (4), (5), (6), (7) and (8)]

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.

[omitted (10), (11), (12), (13), (14) and (15)]

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) [warrant or arrest – suspension of running of conditional sentence order] is deemed to be time served under the conditional sentence order.

Considerations

(17) In exercising its discretion under subsection (16) [power of court to deem time served], 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; 2019, c. 25, s. 304; 2022, c. 17, s. 49.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 742.6(9), (16) and (17)

If a breach is found, the presumption is for the offender to spend the remainder of the sentence in jail.[2] However, the disposition should turn on the particular circumstances.[3] It is the constant threat of incarceration that should compel compliance.[4]

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.[5]

  1. ↑ R v Casey, 2000 CanLII 5626 (ON CA), 141 CCC (3d) 506, per Osborne JA, at para 23
    R v McIvor, 2006 BCCA 343 (CanLII), 210 CCC (3d) 161, per Hall JA (dissent), at para 52
    R v LeBorgne, 2005 NSCA 156 (CanLII), 204 CCC (3d) 177, per Cromwell JA, at para 13
  2. ↑ R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ, at para 39
  3. ↑ R v Langley, 2005 BCCA 478 (CanLII), 202 CCC (3d) 431, per curiam (3:0)
  4. ↑ see R v Brady, 1998 ABCA 7 (CanLII), 121 CCC (3d) 504, per curiam (2:1)
  5. ↑ R v Langmaier, 2009 SKCA 57 (CanLII), 245 CCC (3d) 252, per Sherstobitoff JA (3:0)
    R v Ng, 2007 ONCA 183 (CanLII), per curiam (3:0)
    R v Bailey, 2012 ABCA 165 (CanLII), 289 CCC (3d) 280, per Martin JA (3:0)

Consecutive to Prior Sentence

742.7
[omitted (1)]

Breach of condition

(2) If an order is made under paragraph 742.6(9)(c) [procedure on breach of condition – powers of court – suspend order] or (d) [procedure on breach of condition – powers of court – terminate order] to commit an offender to custody, the custodial period ordered shall, unless the court considers that it would not be in the interests of justice, be served consecutively to any other period of imprisonment that the offender is serving when that order is made.
[omitted (3) and (4)]
1995, c. 22, s. 6; 1999, c. 5, s. 42; 2004, c. 12, s. 16(E).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 742.7(2)

Calculating New Sentence

742.7 [omitted (1), (2)]

Multiple sentences

(3) If an offender is serving both a custodial period referred to in subsection (2) [imprisoned on new offence while on conditional sentence – breach conditions] and any other period of imprisonment, the periods shall, for the purpose of section 743.1 [penitentiary for sentences of 2 years or more] and section 139 of the Corrections and Conditional Release Act, be deemed to constitute one sentence of imprisonment.
[omitted (4)]
1995, c. 22, s. 6; 1999, c. 5, s. 42; 2004, c. 12, s. 16(E).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 742.7(3)

Resumption of Conditional Sentence

742.7
[omitted (1), (2) and (3)]

Conditional sentence order resumes

(4) The running of any period of the conditional sentence order that is to be served in the community resumes upon the release of the offender from prison on parole, on statutory release, on earned remission, or at the expiration of the sentence.
1995, c. 22, s. 6; 1999, c. 5, s. 42; 2004, c. 12, s. 16(E).

– CCC (CanLII), (DOJ)

Note up: 742.7(4)

Terminate Conditional Sentence

742.6
[omitted (1), (2), (3), (3.1), (3.2), (3.3), (4), (5), (6), (7) and (8)]

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

[omitted (a), (b) and (c)]
(d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

[omitted (10), (11), (12), (13), (14), (15), (16) and (17)]
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41; 2019, c. 25, s. 304; 2022, c. 17, s. 49

– CCC (CanLII), (DOJ)

Note up: 742.6(9)

The burden is upon the accused to prove an alternative disposition other than termination should apply.

On disposition for a breach, the first step is to consider whether the presumption of termination is rebutted. To that end, the sentencing judge considers factors including:[1]

  • the nature, circumstances, and timing of the breach;
  • any subsequent criminal conduct and sentences for that conduct;
  • changes in the plan for community supervision;
  • the effect of termination on the appropriateness of the sentence for the original offence;
  • and the offender's previous criminal record.

If the presumption is rebutted, the judge should then consider the same factors to determine which three options are appropriate.[2]

A failure to properly consider consider the factors may render the disposition reversable as "demonstrably or clearly unreasonable."[3]

  1. ↑ R v Langley, 2005 BCCA 478 (CanLII), 202 CCC (3d) 431, per Ryan JA, at para 13
  2. ↑ Langley, ibid., at para 13
  3. ↑ R v Avard, 2019 NSSC 161 (CanLII), per Roskinski J

Effect of Dismissal or Excusal of Allegation

742.6
[omitted (1), (2), (3), (3.1), (3.2), (3.3), (4), (5), (6), (7), (8), (9), (10), (11), (12), (13) and (14)]

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) [conditional sentence continues while offender detained] 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.

[omitted (16) and (17)]
1995, c. 22, s. 6; 1999, c. 5, s. 41; 2004, c. 12, s. 15(E); 2008, c. 18, s. 41; 2019, c. 25, s. 304; 2022, c. 17, s. 49.


[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 742.6(15)

See Also

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