PART XXIIISentencing (continued)
Marginal note:Prohibition on use of bodily substance
732.11 (1) No person shall use a bodily substance provided under a probation order except for the purpose of determining whether an offender is complying with a condition of the order that they abstain from the consumption of drugs, alcohol or any other intoxicating substance.
Marginal note:Prohibition on use or disclosure of result
(2) Subject to subsection (3), no person shall use, disclose or allow the disclosure of the results of the analysis of a bodily substance provided under a probation order.
(3) The results of the analysis of a bodily substance provided under a probation order may be disclosed to the offender to whom they relate, and may also be used or disclosed in the course of an investigation of, or in a proceeding for, an offence under section 733.1 or, if the results are made anonymous, for statistical or other research purposes.
(4) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.
- 2011, c. 7, s. 4.
Marginal note:Coming into force of order
(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.
Marginal note: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.
Marginal note: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.
Marginal note:Judge may act in chambers
(4) All the functions of the court under subsection (3) may be exercised in chambers.
Marginal note: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.
Marginal note:Compelling appearance of person bound
(6) The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice apply, with such modifications as the circumstances require, to proceedings under subsections (3) and (5).
- 1995, c. 22, s. 6;
- 2004, c. 12, s. 12(E).
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note:Failure to comply with probation order
Marginal note:Where accused may be tried and punished
(2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.
- 1995, c. 22, s. 6;
- 2015, c. 23, s. 18.
Fines and Forfeiture
Marginal note:Power of court to impose fine
(a) if the punishment for the offence does not include a minimum term of imprisonment, in addition to or in lieu of any other sanction that the court is authorized to impose; or
(b) if the punishment for the offence includes a minimum term of imprisonment, in addition to any other sanction that the court is required or authorized to impose.
Marginal note:Offender’s ability to pay
(2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.
Marginal note:Meaning of default of payment
(3) For the purposes of this section and sections 734.1 to 737, a person is in default of payment of a fine if the fine has not been paid in full by the time set out in the order made under section 734.1.
Marginal note:Imprisonment in default of payment
(4) Where an offender is fined under this section, a term of imprisonment, determined in accordance with subsection (5), shall be deemed to be imposed in default of payment of the fine.
Marginal note:Determination of term
(5) The term of imprisonment referred to in subsection (4) is the lesser of
(a) the number of days that corresponds to a fraction, rounded down to the nearest whole number, of which
(i) the numerator is the unpaid amount of the fine plus the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection (7), and
(ii) the denominator is equal to eight times the provincial minimum hourly wage, at the time of default, in the province in which the fine was imposed, and
(b) the maximum term of imprisonment that the court could itself impose on conviction or, if the punishment for the offence does not include a term of imprisonment, five years in the case of an indictable offence or six months in the case of a summary conviction offence.
Marginal note:Moneys found on offender
(6) All or any part of a fine imposed under this section may be taken out of moneys found in the possession of the offender at the time of the arrest of the offender if the court making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.
Marginal note:Provincial regulations
(7) The lieutenant governor in council of a province may make regulations respecting the calculation of the costs and charges referred to in subparagraph (5)(a)(i) and in paragraph 734.8(1)(b).
Marginal note:Application to other law
(8) This section and sections 734.1 to 734.8 and 736 apply to a fine imposed under any Act of Parliament, except that subsections (4) and (5) do not apply if the term of imprisonment in default of payment of the fine provided for in that Act or regulation is
- R.S., 1985, c. C-46, s. 734;
- R.S., 1985, c. 27 (1st Supp.), s. 161;
- 1995, c. 22, s. 6;
- 1999, c. 5, s. 33;
- 2003, c. 21, s. 19;
- 2008, c. 18, s. 38.
- Date modified: