Variation of Probation Orders

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General Principles

See also: Conditional Sentence Orders#Sentence Variations

732.2
[omitted (1) and (2)]

Changes to probation order

(3) A court that makes a probation order may at any time, on application by the offender, the probation officer or the prosecutor, require the offender to appear before it and, after hearing the offender and one or both of the probation officer and the prosecutor,

(a) make any changes to the optional conditions that in the opinion of the court are rendered desirable by a change in the circumstances since those conditions were prescribed,

(b) relieve the offender, either absolutely or on such terms or for such period as the court deems desirable, of compliance with any optional condition, or

(c) decrease the period for which the probation order is to remain in force,

and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions, inform the offender of its action and give the offender a copy of the order so endorsed.

Judge may act in chambers

(4) All the functions of the court under subsection (3) [probation order – changes to order] may be exercised in chambers.
[omitted (5) and (6)]
1995, c. 22, s. 6; 2004, c. 12, s. 12(E).
[annotation(s) added]

– CCC

Note up: 732.2 (3) and (4)

There is nothing in s. 732.2 that permits a court on its own accord to vary the conditions of probation while the accused is subject to the order.^[1]

"change"

Section 732.1 defines "change":

Definitions

732.1 (1) In this section and section 732.2 [probation orders],
"change", in relation to optional conditions, includes deletions and additions; (modification)
[omitted (2.1), (2.2), (3), (3.1), (3.2), (4), (5), (6), (7), (8), (9), (10), (11) and (12)]
1995, c. 22, s. 6; 1999, c. 32, s. 6(Preamble); 2003, c. 21, s. 18; 2008, c. 18, s. 37; 2011, c. 7, s. 3; 2014, c. 21, s. 2; 2015, c. 13, s. 27.
[annotation(s) added]

– CCC

Note up: 732.1 (1)

↑ R v H(PA), 1999 BCCA 194 (CanLII), per Ryan JA

Change in Circumstances

A change in circumstances must be a change "relevant to [the] probation between the date of the initial sentence and the date of the application for the change".^[1]

A change in circumstances does not include the fact that the accused has aged and matured since the date of sentencing.^[2]

↑ R v Bennett, 2005 ABCA 119 (CanLII), per curiam, at para 10 ("precondition to a change in the optional conditions of his probation is that there must be a change in circumstance relevant to his probation between the date of the initial sentence and the date of the application for the change")
↑ Bennett, ibid., at para 10

Procedure

Where any terms of an order have been changed the judge must again comply with the requirements under s. 732.2(5) to properly explain the terms and remind them of their rights.^[1]

↑ R v Knott, 2012 SCC 42 (CanLII), [2012] 2 SCR 470, per Fish J, at para 69 ("... as the procedure contemplated by s. 732.2(3) is properly applied where an additional sentence overtakes a probation order, it is appropriate to remind the offender of his or her rights in this regard at the time of the subsequent sentencing."

[1] R v H(PA), 1999 BCCA 194 (CanLII), per Ryan JA

[2] R v Bennett, 2005 ABCA 119 (CanLII), per curiam, at para 10 ("precondition to a change in the optional conditions of his probation is that there must be a change in circumstance relevant to his probation between the date of the initial sentence and the date of the application for the change")

[3] Bennett, ibid., at para 10

[4] R v Knott, 2012 SCC 42 (CanLII), [2012] 2 SCR 470, per Fish J, at para 69 ("... as the procedure contemplated by s. 732.2(3) is properly applied where an additional sentence overtakes a probation order, it is appropriate to remind the offender of his or her rights in this regard at the time of the subsequent sentencing."

[1]

[1]

[2]

[1]