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] Consequently, it is not considered appropriate to achieve the goals of denunciation and deterrence.[4]

A probation order that comes into force years after its imposition may generally lack any meaningful rehabilitative purpose.[5]

  1. ↑ R v Taylor, 1997 CanLII 9813 (SK CA), per Bayda CJ
    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
  3. ↑ Taylor, supra
    Kootenay, supra
  4. ↑ See R v Dunn, 2011 NBCA 19 (CanLII), per Richard JA
    Taylor, supra
  5. ↑ R v Knott, [2012] 2 SCR 470, 2012 SCC 42 (CanLII), per Fish J, at para 65

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, and the court that makes the probation order shall specify therein the period for which it is to remain in force.
...


– CCC

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) and the substance of section 733.1 to the offender;
(c) cause an explanation to be given to the offender of the procedure for applying under subsection 732.2(3) for a change to the optional conditions and of the substance of subsections 732.2(3) and (5); 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) 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.


– CCC

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).
(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.


– CCC

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, supra 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, 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), 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).


– CCC

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

Duration and Commencement

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) 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),

(a) where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1, or is imprisoned under paragraph 731(1)(b) 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).


– CCC

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

732.2
...
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) may be exercised in chambers.
...
1995, c. 22, s. 6; 2004, c. 12, s. 12(E).


– CCC

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":

732.1
...

Definitions

732.1 (1) In this section and section 732.2,
"change", in relation to optional conditions, includes deletions and additions; (modification)
...
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.


– CCC

  1. ↑ R v H. (P.A.), 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]

  1. ↑ 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")
  2. ↑ 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]

  1. ↑ R v Knott, [2012] 2 SCR 470, 2012 SCC 42 (CanLII), 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."

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 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 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) 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.


– CCC

Young Offenders

See also: Sentencing Young Offenders

Probationary orders for young offenders may be made under 42(2)(k) for a period of no more than two years.[1]

Conditions available are enumerated in s. 55:

Conditions that must appear in orders
55. (1) The youth justice court shall prescribe, as conditions of an order made under paragraph 42(2)(k) or (l), that the young person

(a) keep the peace and be of good behaviour; and
(b) appear before the youth justice court when required by the court to do so.

Conditions that may appear in orders
(2) A youth justice court may prescribe, as conditions of an order made under paragraph 42(2)(k) or (l), that a young person do one or more of the following that the youth justice court considers appropriate in the circumstances:

(a) report to and be supervised by the provincial director or a person designated by the youth justice court;
(b) notify the clerk of the youth justice court, the provincial director or the youth worker assigned to the case of any change of address or any change in the young person’s place of employment, education or training;
(c) remain within the territorial jurisdiction of one or more courts named in the order;
(d) make reasonable efforts to obtain and maintain suitable employment;
(e) attend school or any other place of learning, training or recreation that is appropriate, if the youth justice court is satisfied that a suitable program for the young person is available there;
(f) reside with a parent, or any other adult that the youth justice court considers appropriate, who is willing to provide for the care and maintenance of the young person;
(g) reside at a place that the provincial director may specify;
(h) comply with any other conditions set out in the order that the youth justice court considers appropriate, including conditions for securing the young person’s good conduct and for preventing the young person from repeating the offence or committing other offences; and
(i) not own, possess or have the control of any weapon, ammunition, prohibited ammunition, prohibited device or explosive substance, except as authorized by the order.


– YCJA

Section 55(2) provides for residual powers "to impose conditions that ...[are] appropriate, including conditions to secure the young person good conduct and to prevent the young person from repeating the offence or committing other offences."[2]

Communication of order
56 (1) A youth justice court that makes an order under paragraph 42(2)(k) or (l) shall

(a) cause the order to be read by or to the young person bound by it;
(b) explain or cause to be explained to the young person the purpose and effect of the order, and confirm that the young person understands it; and
(c) cause a copy of the order to be given to the young person, and to any parent of the young person who is in attendance at the sentencing hearing.

Copy of order to parent
(2) A youth justice court that makes an order under paragraph 42(2)(k) or (l) may cause a copy to be given to a parent of the young person who is not in attendance at the proceedings if the parent is, in the opinion of the court, taking an active interest in the proceedings.
Endorsement of order by young person
(3) After the order has been read and explained under subsection (1), the young person shall endorse on the order an acknowledgement that the young person has received a copy of the order and had its purpose and effect explained.
Validity of order
(4) The failure of a young person to endorse the order or of a parent to receive a copy of the order does not affect the validity of the order.
Commencement of order
(5) An order made under paragraph 42(2)(k) or (l) comes into force

(a) on the date on which it is made; or
(b) if a young person receives a sentence that includes a period of continuous custody and supervision, at the end of the period of supervision.

Effect of order in case of custody
(6) If a young person is subject to a sentence that includes both a period of continuous custody and supervision and an order made under paragraph 42(2)(k) or (l), and the court orders under subsection 42(12) a delay in the start of the period of custody, the court may divide the period that the order made under paragraph 42(2)(k) or (l) is in effect, with the first portion to have effect from the date on which it is made until the start of the period of custody, and the remainder to take effect at the end of the period of supervision.
Notice to appear
(7) A young person may be given notice either orally or in writing to appear before the youth justice court under paragraph 55(1)(b).
Warrant in default of appearance
(8) If service of a notice in writing is proved and the young person fails to attend court in accordance with the notice, a youth justice court may issue a warrant to compel the appearance of the young person.


– YCJA


  1. ↑ s. 42(2) states "(k) place the young person on probation in accordance with sections 55 and 56 (conditions and other matters related to probation orders) for a specified period not exceeding two years;"
  2. ↑ R v VRA, 2007 CanLII 49481 (ON SC), per Abbey J at para 31

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
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