- 1 General Principles
- 2 Form of Order
- 3 Procedure
- 4 When Probation can be Ordered
- 5 Suspending of Sentence
- 6 Prison or Fine with Probation
- 7 Commencement and Duration of Order
- 8 Terms of Probation
- 9 Variation of Probationary Terms
- 10 Transfer of Order
- 11 Young Offenders
- 12 Appeals
An order of probation's primary purpose is to influence the future behaviour of the offender. Probation is "a rehabilitative sentencing tool...It is not considered punitive in nature.”  It does not seek to reflect the seriousness of the offence or the offender's degree of culpability.
The orders are designed to "reintegrate offenders into the community" as well as protect the public.
The order may be used to deter the offender from committing future offences and ensure "good conduct".
- Punishment in Effect Not Purpose
A probation order imposed as a form of punishment rather than rehabilitation may be struck down.
- Probation Close in Time to Offence
A probation order that comes into force years after its imposition may generally lack any meaningful rehabilitative purpose.
R v Taylor, 1997 CanLII 9813 (SK CA), per Bayda CJ ("Apart from the wording of the provision, the innate character of a probation order is such that it seeks to influence the future behaviour of the offender. More specifically, it seeks to secure “the good conduct” of the offender and to deter him from committing other offences.")
R v Kootenay, 2000 ABCA 289 (CanLII), per curiam
R v Rawn, 2012 ONCA 487 (CanLII), per Epstein JA, at para 35
R v Goeujon, 2006 BCCA 261 (CanLII), per Ryan JA, at para 49
R v Proulx,  1 SCR 61, 2000 SCC 5 (CanLII), per Lamer CJ, at para 32
R v Duguay, 2019 BCCA 53 (CanLII), per Fitch JA, at para 60
R v Walsh, 2018 BCCA 222 (CanLII), per Griffin JA (a probation order acts “as a tool to assist in the rehabilitation” of offenders)
Taylor, supra at p. 394 ("It does not particularly seek to reflect the seriousness of the offence or the offender’s degree of culpability. Nor does it particularly seek to fill the need for denunciation of the offence or the general deterrence of others to commit the same or other offences.")
- Dugay, supra, at para 61 Walsh, supra, at para 37(it is seen "as a tool to assist in the protection of society")
Taylor, supra at p. 394 ("...the innate character of a probation order is such that it seeks to influence the future behaviour of the offender. More specifically, it seeks to secure “the good conduct” of the offender and to deter him from committing other offences.")
See R v Dunn, 2011 NBCA 19 (CanLII), per Richard JA
R v Voong, 2015 BCCA 285 (CanLII), per Bennett JA, at para 37
Dugay, supra, at paras 60 to 61
Taylor, supra, at p. 394 ("Depending upon the specific conditions of the order there may well be a punitive aspect to a probation order but punishment is not the dominant or an inherent purpose.")
Proulx, supra, at para 33
R v Ziatas (1973), 1973 CanLII 1413] (ON CA), 13 C.C.C. (2d) 287 (Ont. C.A.), per Martin JA at p. 288
R v Caja (1997), 1977 CanLII 2050 (ON CA), 36 CCC (2d) 401 (Ont. C.A.), per Houlden JA, at pp. 402-403
R v Lavender (1981), 1981 CanLII 334 (BC CA), 59 CCC (2d) 551 (BCCA), per Nemetz CJ, at pp. 551-53
R v L (1986), 1986 ABCA 83 (CanLII), 50 C.R. (3d) 398 (Alta. C.A.), per Laycraft JA, at pp. 339-400
R v Knott,  2 SCR 470, 2012 SCC 42 (CanLII), per Fish J, at paras 64 to 65 ("A probation order that was appropriate when made may well be rendered inappropriate by a lengthy intervening term of imprisonment. ..., where a probation order will not come into force for many years after its imposition, or where the total period of incarceration is extended to the point that the offender will be subject to a lengthy period of community supervision while on parole or statutory release, a probation order will generally lack a meaningful rehabilitative purpose.")
Form of Order
A probation order should conform to Form 46. It should contain the duration of the order.:
When the court makes a probation order, the court must follow s. 732.1(5) which states:
According to s. 732.1(6), a failure to comply with s. 732.1(5) does not invalidate the probation order.
When Probation can be Ordered
A probation order can be made where it is attached to one of the following orders:
- suspended sentence
- discharge order
- prison sentence is 2 years or less
- fine order
They cannot, however, be combined. There cannot be fine and suspended sentence.
The enabling provision, s. 731, states:
The period of probation cannot be greater than three years.
Probation should not be imposed where it is impractical to make use of probation.
A probation order cannot be made where the global sentence of imprisonment is greater than two years.
Where the sentence is greater than two years, but remand credit brings it under two years, probation still cannot be ordered.
- R v Kelly, 1995 CanLII 9854 (NL CA), per Gushue JA
- R v Cameron, 2011 ABCA 311 (CanLII), per Martin JA - Probation was removed from sentence on appeal where the offender was working in remote area far from any probation office
- R v Kohl, 2009 ONCA 254 (CanLII), per Armstrong JA - probation struck after appeal court sentenced offender to two years and probation while the accused was already serving 5 year sentence
- R v Mathieu,  1 SCR 723, 2008 SCC 21 (CanLII), per Fish J
Challenging Validity and Rule Against Collateral Attack
Suspending of Sentence
Under s. 731(1)(a), court may order that the sentence be suspended and the offender be placed on a period of probation.
A judge may not suspend sentence and order a fine for the same charge.
The passing of a suspended sentence is not considered a "punishment". However, the possibility of a revocation of the suspension is possible there is some suggestion that it provides "deterrent value".
- see above
- R v Kelly, 1995 CanLII 9854 (NL CA), per Gushue JA
- R v Johnson (1972), 6 CCC (2d) 380 (BCCA), 1972 CanLII 1257 (BC CA), per Bull JA, at p. 382
R v McGill, 2016 ONCJ 138 (CanLII), per M Green J, at para 51
R v Voong, 2015 BCCA 285 (CanLII), per Bennett JA, at para 39 ("Because a breach of the probation order can result in a revocation and sentencing on the original offence, it has been referred to as the "Sword of Damocles" hanging over the offender's head. ")
R v Scott, 1996 CanLII 5297 (NS CA), per Pugsley JA ("I agree with counsel's submission and add that the approach of the sentencing judge, in addition, ignored the deterrent effect of a suspended sentence, implying that deterrence could only be reflected in a custodial sentence.")
Revoking a Suspended Sentence
Under s. 732.2(5)(d), a court may revoke the suspension of sentence:
Any revocation of a suspended sentence must be made before the original sentencing judge.
Prison or Fine with Probation
Section 731(1)(b) permits a probation order when it is attached to a sentence of imprisonment of less than 2 years.
The length of sentence is considered going forward from the date of sentence and not the global sentence before subtracting remand credit.
Also, where the prison sentence is intermittent along with a fine, the court must order probation for the duration in which the offender is not imprisoned.
- Consecutive Sentences Over 2 years
A probation attached to a jail sentence of under 2 years will continue in effect if the accused is subsequently sentenced to a further consecutive jail term that, in combination with the original jail sentence, equals a term of 2 years or more.
R v Mathieu, 2008 SCC 21 (CanLII), per Fish J
R v Goeujon, 2006 BCCA 261 (CanLII), per Ryan JA
R v Smith (1972), 7 CCC (2d) 468 (NWTC), 1972 CanLII 1455 (NWT TC), per Morrow J, at p. 470
R v St. James (1981), 20 C.R. (3d) 389 (Que. C.A.)(*no CanLII links)
R v Shimout,  N.W.T.R. 118 (N.W.T.S.C.)(*no CanLII links)
R v Kavanagh, 1988 CanLII 4927 (SK QB), (1988), 69 Sask.R. 188 (Q.B), per Hrabinsky J
R v Biron, 1991 CanLII 3911 (QC CA), (1991), 65 CCC 221 (Que. C.A.), per Rothman JA
- R v Ukrainetz, 1995 CanLII 3928 (SK CA), per Jackson JA
- R c Cartier, 1990 CanLII 3388 (QC CA), per curiam
- R v Conway, 2008 ONCJ 270 (CanLII), per Douglas J
Commencement and Duration of Order
Section 732.2 governs when a probation order will come into effect and the duration:
Section 732.1(4) requires that the probation order contain the duration of the order.
- No Consecutive Order
Multiple probation orders cannot be ordered to be applied consecutively.
Terms of Probation
Variation of Probationary Terms
Transfer of Order
Under s. 683(5), the Court of Appeal may suspend certain sentencing orders, including a probation order, while an appeal is pending.
- see Appeals for details