Probation Orders

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General Principles

An order of probation's primary purpose is to influence the future behaviour of the offender.[1] Probation is "a rehabilitative sentencing tool...It is not considered punitive in nature.” [2] It does not seek to reflect the seriousness of the offence or the offender's degree of culpability.[3]

The orders are designed to "reintegrate offenders into the community" as well as protect the public.[4]

The order may be used to deter the offender from committing future offences and ensure "good conduct".[5]

Punishment in Effect Not Purpose

A probation order is not considered appropriate to achieve the goals of denunciation and deterrence.[6] It may have punitive effects or aspects, including the restrictions of liberty.[7]

A probation order imposed as a form of punishment rather than rehabilitation may be struck down.[8]

Probation Close in Time to Offence

A probation order that comes into force years after its imposition may generally lack any meaningful rehabilitative purpose.[9]

  1. 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
  2. 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, [2000] 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)
  3. 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.")
    Kootenay, supra
  4. Dugay, supra, at para 61 Walsh, supra, at para 37(it is seen "as a tool to assist in the protection of society")
  5. 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.")
  6. See R v Dunn, 2011 NBCA 19 (CanLII), per Richard JA
    Taylor, supra
    R v Voong, 2015 BCCA 285 (CanLII), per Bennett JA, at para 37
  7. 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.")
  8. 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
  9. R v Knott, [2012] 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.:

732.1
...

Form and period of order

(4) A probation order may be in Form 46 [forms], and the court that makes the probation order shall specify therein the period for which it is to remain in force.
...

[annotation(s) added]

CCC


Note up: 732.1(4)

Procedure

When the court makes a probation order, the court must follow s. 732.1(5) which states:

732.1
...

Obligations of court

(5) The court that makes a probation order shall

(a) cause a copy of the order to be given to the offender;
(b) explain the conditions of the order set under subsections (2) to (3.1) [mandatory and optional conditions for probation orders] and the substance of section 733.1 [breach of probation order] to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under subsection 732.2(3) [probation order – changes to order] for a change to the optional conditions and of the substance of subsections 732.2(3) [probation order – changes to order] and (5) [vary or cancel probation order on breach conviction]; and
(d) take reasonable measures to ensure that the offender understands the order and the explanations.
For greater certainty

(6) For greater certainty, a failure to comply with subsection (5) [probation order – procedural obligation of court] does not affect the validity of the probation order. ...
1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37.
[annotation(s) added]

CCC


Note up: 732.1(5) and (6)

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.[1]

The enabling provision, s. 731, states:

Making of probation order

731 (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,

(a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order;
(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.
Idem

(2) A court may also make a probation order where it discharges an accused under subsection 730(1) [order of discharge].
(3.1) [Repealed, 1997, c. 17, s. 1]
R.S., 1985, c. C-46, s. 731; 1992, c. 1, s. 58, c. 20, s. 200; 1995, c. 22, s. 6; 1997, c. 17, s. 1.
[annotation(s) added]

CCC


Note up: 731(1) and (2)

The period of probation cannot be greater than three years.

Probation should not be imposed where it is impractical to make use of probation.[2]

A probation order cannot be made where the global sentence of imprisonment is greater than two years.[3]

Where the sentence is greater than two years, but remand credit brings it under two years, probation still cannot be ordered.[4]

  1. R v Kelly, 1995 CanLII 9854 (NL CA), per Gushue JA
  2. 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
  3. 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
  4. R v Mathieu, [2008] 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.[1]

A judge may not suspend sentence and order a fine for the same charge.[2]

The passing of a suspended sentence is not considered a "punishment".[3] However, the possibility of a revocation of the suspension is possible there is some suggestion that it provides "deterrent value".[4]

  1. see above
  2. R v Kelly, 1995 CanLII 9854 (NL CA), per Gushue JA
  3. R v Johnson (1972), 6 CCC (2d) 380 (BCCA), 1972 CanLII 1257 (BC CA), per Bull JA, at p. 382
  4. 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

See also: Breach of Undertaking, Recognizance, or Probation (Offence)

Under s. 732.2(5)(d), a court may revoke the suspension of sentence:

732.2
...

Where person convicted of offence

(5) Where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1 [breach of probation order], and

(a) the time within which an appeal may be taken against that conviction has expired and the offender has not taken an appeal,
(b) the offender has taken an appeal against that conviction and the appeal has been dismissed, or
(c) the offender has given written notice to the court that convicted the offender that the offender elects not to appeal the conviction or has abandoned the appeal, as the case may be,

in addition to any punishment that may be imposed for that offence, the court that made the probation order may, on application by the prosecutor, require the offender to appear before it and, after hearing the prosecutor and the offender,

(d) where the probation order was made under paragraph 731(1)(a) [order suspending sentence and release offender], revoke the order and impose any sentence that could have been imposed if the passing of sentence had not been suspended, or
(e) make such changes to the optional conditions as the court deems desirable, or extend the period for which the order is to remain in force for such period, not exceeding one year, as the court deems desirable,

and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions or extends the period for which the order is to remain in force, inform the offender of its action and give the offender a copy of the order so endorsed.
...
1995, c. 22, s. 6; 2004, c. 12, s. 12(E).
[annotation(s) added]

CCC


Note up: 732.2(5)

Any revocation of a suspended sentence must be made before the original sentencing judge.[1]

  1. R v Graham (1975), 27 CCC (2d) 475 (Ont. C.A.), 1975 CanLII 1268 (ON CA), per MacKinnon JA
    see generally R v Blanchard, 2009 YKCA 15 (CanLII), per Huddart JA

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.[1]

Probation can be ordered with a fine or prison, but it cannot be all three.[2] However, a prison sentence for default on the fine is permissible.[3]

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.[4]

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.[5]

  1. R v Mathieu, 2008 SCC 21 (CanLII), per Fish J
    R v Goeujon, 2006 BCCA 261 (CanLII), per Ryan JA
  2. 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, [1985] 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
  3. R v Ukrainetz, 1995 CanLII 3928 (SK CA), per Jackson JA
  4. R c Cartier, 1990 CanLII 3388 (QC CA), per curiam
  5. 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:

Coming into force of order

732.2 (1) A probation order comes into force

(a) on the date on which the order is made;
(b) where the offender is sentenced to imprisonment under paragraph 731(1)(b) [imposition of conditions] or was previously sentenced to imprisonment for another offence, as soon as the offender is released from prison or, if released from prison on conditional release, at the expiration of the sentence of imprisonment; or
(c) where the offender is under a conditional sentence order, at the expiration of the conditional sentence order.
Duration of order and limit on term of order

(2) Subject to subsection (5) [vary or cancel probation order on breach conviction],

(a) where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1 [breach of probation order], or is imprisoned under paragraph 731(1)(b) [imposition of conditions] in default of payment of a fine, the order continues in force except in so far as the sentence renders it impossible for the offender for the time being to comply with the order; and
(b) no probation order shall continue in force for more than three years after the date on which the order came into force.

...
1995, c. 22, s. 6; 2004, c. 12, s. 12(E).
[annotation(s) added]

CCC


Note up: 732.2(1) and (2)

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.[1]

  1. R v Hunt, (1982) 2 CCC (2d) 126, 1982 CanLII 3716 (NS CA), per MacDonald JA

Terms of Probation

Variation of Probationary Terms

Transfer of Order

Transfer of order

733 (1) Where an offender who is bound by a probation order becomes a resident of, or is convicted or discharged under section 730 of an offence including an offence under section 733.1 [breach of probation order] in, a territorial division other than the territorial division where the order was made, on the application of a probation officer, the court that made the order may, subject to subsection (1.1) [transfer of probation order – AG's consent], 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 probation 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 probation 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 probation order or to which a probation order has been transferred pursuant to subsection (1) [transfer of probation order] is for any reason unable to act, the powers of that court in relation to the probation order may be exercised by any other court that has equivalent jurisdiction in the same province.
R.S., 1985, c. C-46, s. 733; R.S., 1985, c. 24 (2nd Supp.), s. 46; 1995, c. 22, s. 6; 1999, c. 5, s. 32.
[annotation(s) added]

CCC


Note up: 733(1), (1.1) and (2)

Young Offenders

See also: Sentencing Young Offenders

Appeals

See also: Appeals

Under s. 683(5), the Court of Appeal may suspend certain sentencing orders, including a probation order, while an appeal is pending.[1]

  1. see Appeals for details