History of Conditional Sentences
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General Principles
On November 20, 2012, s. 742.1 was amended to eliminate a number of types of offences that are eligible for CSOs. Also, there is no longer any consideration of whether an offence is a "serious personal injury" offence.[1] These amendments only apply to offences that occur after the amendments.
This amendment is interpreted as a "signal from Parliament" that the applicable conduct "will not be tolerated".[2]
- ↑ see <http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2012_1/FullText.html>
- ↑ R v Rawn, 2012 ONCA 487 (CanLII), [2012] OJ No 3096, per Epstein JA
Prior to November 20, 2012
The previous version of s. 742.1 stated:
- Imposing of conditional sentence
742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and 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, 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 offender’s compliance with the conditions imposed under section 742.3.
...
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.– CCC
Eligibility Test
The old requirements for a conditional sentence prior to the amendments were:[1]
- the offence has no mandatory minimums
- it is not a "serious personal injury offence"
- the appropriate sentence is one of less than two years
- a sentence in the community would not endanger the safety of the community
- in consideration of the risk of the offender reoffending; and,
- in consideration of the gravity of the damage that could follow a re-offence.
- the appropriate sentence consistent with the fundamental purpose and principles of sentencing
- ↑ R v Proulx, 2000 SCC 5 (CanLII), [2000] 1 SCR 61, per Lamer CJ, at para 46
Serious Personal Injury Offences
On December 1, 2007, the Criminal Code was amended to exempt all "serious personal injury offences", as defined in s. 752, from consideration for Conditional Sentences prior to November 20, 2012:
752.
...
“serious personal injury offence” means
- (a) an indictable offence, other than high treason, treason, first degree murder or second degree murder, involving
- (i) the use or attempted use of violence against another person, or
- (ii) conduct endangering or likely to endanger the life or safety of another person or inflicting or likely to inflict severe psychological damage on another person,
and for which the offender may be sentenced to imprisonment for ten years or more, or
- (b) an offence or attempt to commit an offence mentioned in section 271 (sexual assault), 272 (sexual assault with a weapon, threats to a third party or causing bodily harm) or 273 (aggravated sexual assault).
R.S., c. C-34, s. 687; 1976-77, c. 53, s. 14; 1980-81-82-83, c. 125, s. 26.– CCC
This has been found to exclude most robberies.[1]
See more at Serious Personal Injury Offences
- ↑
R v Lebar, 2010 ONCA 220 (CanLII), [2010] OJ No 1133, per Epstein JA
cf. R v Hendsbee, 2009 NSPC 50 (CanLII), 85 WCB (2d) 168, per Tufts J
R v Sutherland, 2010 ONCJ 103 (CanLII), per Lipson J
History of Legislative Text
1995
The original version of s. 742.1, enacted by 1995, c. 22, s. 6, was the following:
- Imposing of conditional sentence
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
- (a) imposes a sentence of imprisonment of less than two years, and
- (b) is satisfied that serving the sentence in the community would not endanger the safety of the community.
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 offender's complying with the conditions of a conditional sentence order made under section 742.3.
–
1997
In 1997, s. 742.1 amended by 2007, c. 12, s. 1, to read as follows:
- Imposing of conditional sentence
742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
- (a) imposes a sentence of imprisonment of less than two years, and
- (b) is satisfied that serving 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.
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 offender's complying with the conditions of a conditional sentence order made under section 742.3.
–
2007
On November 30, 2007, s. 742.1 amended by 2007, c. 12, s. 1, to read as follows:
- Imposing of conditional sentence
742.1 If a person is convicted of an offence, other than a serious personal injury offence as defined in section 752, a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more or an offence punishable by a minimum term of imprisonment, and the court imposes a sentence of imprisonment of less than two years and 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, 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 offender's compliance with the conditions imposed under section 742.3.
–
2012
On November 20, 2012, s. 742.1 amended by 2012, c. 1, s. 34, to read as follows:
- 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, 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;
- (b) the offence is not an offence punishable by a minimum term of imprisonment;
- (c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;
- (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;
- (e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that
- (i) resulted in bodily harm,
- (ii) involved the import, export, trafficking or production of drugs, or
- (iii) involved the use of a weapon; and
- (f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:
- (i) section 144 (prison breach),
- (ii) section 264 (criminal harassment),
- (iii) section 271 (sexual assault),
- (iv) section 279 (kidnapping),
- (v) section 279.02 (trafficking in persons - material benefit),
- (vi) section 281 (abduction of person under fourteen),
- (vii) section 333.1 (motor vehicle theft),
- (viii) paragraph 334(a) (theft over $5000),
- (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house),
- (x) section 349 (being unlawfully in a dwelling-house), and
- (xi) section 435 (arson for fraudulent purpose).
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