Conditional Sentences

From Criminal Law Notebook
This page was last substantively updated or reviewed September 2023. (Rev. # 96538)

Introduction

A conditional sentence is a sentence of incarceration which is permitted to be served in the community under conditions, typically consisting of house arrest or curfew, 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 [conditions of conditional sentence order], 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 [general sentencing provisions];
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence under any of the following provisions:
(i) section 239, for which a sentence is imposed under paragraph 239(1)‍(b) (attempt to commit murder),
(ii) section 269.‍1 (torture), or
(iii) section 318 (advocating genocide); and
(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;

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; 2022, c. 15, s. 14.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 742.1

CSO and Incarceration

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

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.”[2] The denunciatory aspects and deterrent effect "will increase with the degree of restriction on liberty" as set out in the terms of the order.[3]

A CSO is not the same as probation. The former being punitive and rehabilitative while latter being only for rehabilitation.[4]

Purpose

The purpose of the conditional sentence is to reduce the reliance on incarceration as a sanction and increase restorative justice objectives.[5]

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."[6]

Constitutionality

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.[7] However, in Ontario the unavailability of conditional sentences to aboriginal offenders for violates s. 7 of the Charter and is struck. [8]

Appellate Review

The decision to order a conditional sentence is entitled to "considerable deference."[9]

History

The conditional sentence option was introduced in 1996 as a "meaningful alternative for less serious and non-dangerous offenders."[10]

  1. ↑ R v LFW, 1997 CanLII 10868 (NL CA), Nfld. & PEIR 115(Nfld. C.A.), per Marshall JA
    R v Oliver (E.M.), 1997 CanLII 14631 (NL CA), Nfld. & PEIR 210 (Nfld. C.A.), per Cameron JA
    R v Quality (R.), 1997 CanLII 14660 (NL CA), Nfld. & PEIR 320 (Nfld. C.A.), per Gushue JA
    R v JM, 1998 CanLII 18034 (NL CA), Nfld. & PEIR 38 (Nfld. C.A.), per Green JA
  2. ↑ Proulx, ibid., at para 102
  3. ↑ R v Hall, 2001 BCCA 74 (CanLII), per Saunders JA, at para 16 ("...it is clear that a conditional sentence's denunciatory aspects and deterrent effect increase with the degree of restriction on liberty which is incorporated in the terms of the conditional sentence.")
  4. ↑ Proulx, ibid., at para 127
  5. ↑ R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ, at para 127
    R v Sharma, 2022 SCC 39 (CanLII), per Brown and Rowe JJ, at para 9
  6. ↑ Proulx, ibid., at para 127
  7. ↑ R v Neary, 2016 SKQB 218 (CanLII), per RS Smith J - related to drug trafficking offences
  8. ↑ R v Sharma, 2020 ONCA 478 (CanLII), 390 CCC (3d) 1, per Feldman JA
  9. ↑ R v Peterson, 2005 CanLII 37972 (ON CA), 201 CCC (3d) 220, 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")
  10. ↑ Proulx, supra, at paras 14 to 21

Eligibility

The requirements under s. 742.1 for a conditional sentence are summarized as follows:

  1. the offence has no mandatory minimums
  2. if the offence has a maximum penalty of 10 years or more, it is not
    1. a terrorism offence, or
    2. a criminal organization offence,
  3. the appropriate sentence is 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 can be available to a person who is on parole.[1]

Presumptions

There is no presumption for or against CSOs.[2] However, it is considered "likely more appropriate" where a "combination of both punitive and restorative objectives" are to be achieved.[3]

Constitutionality

The restrictions on conditional sentences for certain classes of offences does not violate s. 7 or 12 of the Charter.[4]

  1. ↑ R v Harris, 2000 BCCA 599 (CanLII), per Ryan JA
  2. ↑ Proulx, supra, at para 127
  3. ↑ Proux, supra, at para 127
  4. ↑ 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 Minimums

See also: Maximum and Minimum Sentences

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.[1]

Where a penitentiary sentence "cannot be excluded", then a CSO cannot be imposed.[2]


  1. ↑ R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ, at para 58
  2. ↑ Proulx, ibid. at para 58
    {R v Smith, 2023 ONCA 620 (CanLII), per curiam, at para 7

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.[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 (CanLII), 280 Man R (2d) 109, per M Monnin JA, at para 14
    R v Eckert, 2006 MBCA 6 (CanLII), 201 Man R (2d) 175, per Steel JA
  2. ↑ see R v Knoblauch, 2000 SCC 58 (CanLII), [2000] 2 SCR 780, per Arbour J (5:4)
  3. ↑ Knoblauch, ibid., at para 27
  4. ↑ R v Wright, 2011 ABCA 42 (CanLII), 502 AR 318, per McDonald JA, at para 12
    see also R v Wilson, 2009 ABCA 257 (CanLII), 457 AR 373, per curiam at 37
    R v Melvin, 2010 NSCA 5 (CanLII), 912 APR 235, per Bateman JA, at para 9
    R v Viscomi, 2012 ABCA 135 (CanLII), 545 WAC 241, per curiam
    R v AB, 2012 MBCA 25 (CanLII), 275 Man R (2d) 285, per Chartier JA

Compliance with the Principles and Purposes of Sentencing

Child Sexual Offences
See also: Child Sexual Offences

CSOs for child sexual offences will be "very rarely" appropriate absent "limited exceptional circumstances."[1]

  1. ↑ R v MM, 2022 ONCA 441 (CanLII) (working hyperlinks pending), per curiam, at para 16
    R v BM, 2023 ONCA 224 (CanLII) (working hyperlinks pending), per Harvison Young JA, at para 2

Procedure

Imposing Conditions

Conditional Sentence Breaches

Effect of Custody on Other Matters

If person imprisoned for new offence

742.7 (1) If an offender who is subject to a conditional sentence order is imprisoned as a result of a sentence imposed for another offence, whenever committed, the running of the conditional sentence order is suspended during the period of imprisonment for that other offence.

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.

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.

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).
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 742.7(1), (2), (3), and (4)

Order Variations

See also: Probation Orders#Variations

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) [power and manner of supervisor changing optional conditions],

(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) [power and manner of supervisor changing optional conditions].

Decision at hearing

(3) At a hearing held pursuant to subsection (2) [supervisor changing optional conditions – hearing], 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) [power and manner of supervisor changing optional conditions], 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) [power and manner of supervisor changing optional conditions] and (3) [supervisor changing optional conditions – decision at hearing] 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) [power and manner of supervisor changing optional conditions].

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.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 742.4(1), (2), (3), (4), (5), and (6)

A change of address cannot be done merely be calling and leaving a voicemail message on the supervisor's 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 ABQB 817 (CanLII), 192 CCC (3d) 224, per Germain J
  2. ↑ R v Sullivan, 2009 CanLII 59436 (NL PC), per Gorman J
  3. ↑ R v Goett, 2012 ABCA 215 (CanLII), 557 WAC 264, per curiam (3:0)

Transfer CSOs to different Provinces

Transfer of order

742.5 (1) Where an offender who is bound by a conditional sentence order becomes a resident of a territorial division, other than the territorial division where the order was made, on the application of a supervisor, the court that made the order may, subject to subsection (1.1) [transfer of conditional sentence order – crown consent required], transfer the order to a court in that other territorial division that would, having regard to the mode of trial of the offender, have had jurisdiction to make the order in that other territorial division if the offender had been tried and convicted there of the offence in respect of which the order was made, and the order may thereafter be dealt with and enforced by the court to which it is so transferred in all respects as if that court had made the order.

Attorney General’s consent

(1.1) The transfer may be granted only with

(a) the consent of the Attorney General of the province in which the conditional sentence order was made, if the two territorial divisions are not in the same province; 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.
Where court unable to act

(2) Where a court that has made a conditional sentence order or to which a conditional sentence order has been transferred pursuant to subsection (1) [transfer of conditional sentence order] is for any reason unable to act, the powers of that court in relation to the conditional sentence order may be exercised by any other court that has equivalent jurisdiction in the same province.
1995, c. 22, s. 6; 1999, c. 5, s. 40.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 742.5(1), (1.1) and (2)

History

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