Criminal Code (R.S.C., 1985, c. C-46)

Probation

Marginal note: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; or

  • (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.

• Marginal note: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• (3.1) [Repealed, 1997, c. 17, s. 1]

Marginal note:Firearm, etc., prohibitions

• 731.1 (1) Before making a probation order, the court shall consider whether section 109 or 110 is applicable.

• Marginal note:Application of section 109 or 110

  (2) For greater certainty, a condition of a probation order referred to in paragraph 732.1(3)(d) does not affect the operation of section 109 or 110.

Marginal note:Intermittent sentence

• 732 (1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

  • (a) that the sentence be served intermittently at such times as are specified in the order; and

  • (b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence.

• Marginal note:Application to vary intermittent sentence

  (2) An offender who is ordered to serve a sentence of imprisonment intermittently may, on giving notice to the prosecutor, apply to the court that imposed the sentence to allow it to be served on consecutive days.

• Marginal note:Court may vary intermittent sentence if subsequent offence

  (3) Where a court imposes a sentence of imprisonment on a person who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the court otherwise orders.

Marginal note:Definitions

• 732.1 (1) In this section and section 732.2,

  change

  change, in relation to optional conditions, includes deletions and additions; (modification)

  optional conditions

  optional conditions means the conditions referred to in subsection (3) or (3.1). (conditions facultatives)

• Marginal note:Compulsory conditions of probation order

  (2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following:

  • (a) keep the peace and be of good behaviour;

  • (a.1) [Repealed, 2019, c. 25, s. 297]

  • (b) appear before the court when required to do so by the court; and

  • (c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

• (2.1) [Repealed, 2019, c. 25, s. 297]

• (2.2) [Repealed, 2019, c. 25, s. 297]

• Marginal note:Optional conditions of probation order

  (3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:

  • (a) report to a probation officer

    • (i) within two working days, or such longer period as the court directs, after the making of the probation order, and

    • (ii) thereafter, when required by the probation officer and in the manner directed by the probation officer;

  • (a.1) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order or from going to any place or geographic area specified in the order, except in accordance with any specified conditions that the court considers necessary;

  • (b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

  • (c) abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;

  • (c.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under subsection (9) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;

  • (c.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by a probation officer in a notice in Form 51 served on the offender, if a condition of the order requires the offender to abstain from the consumption of drugs, alcohol or any other intoxicating substance;

  • (d) abstain from owning, possessing or carrying a weapon;

  • (e) provide for the support or care of dependants;

  • (f) perform up to 240 hours of community service over a period not exceeding eighteen months;

  • (g) if the offender agrees, and subject to the program director’s acceptance of the offender, participate actively in a treatment program approved by the province;

  • (g.1) where the lieutenant governor in council of the province in which the probation order is made has established a program for curative treatment in relation to the consumption of alcohol or drugs, attend at a treatment facility, designated by the lieutenant governor in council of the province, for assessment and curative treatment in relation to the consumption by the offender of alcohol or drugs that is recommended pursuant to the program;

  • (g.2) where the lieutenant governor in council of the province in which the probation order is made has established a program governing the use of an alcohol ignition interlock device by an offender and if the offender agrees to participate in the program, comply with the program; and

  • (h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender’s successful reintegration into the community.

• Marginal note:Optional conditions — organization

  (3.1) The court may prescribe, as additional conditions of a probation order made in respect of an organization, that the offender do one or more of the following:

  • (a) make restitution to a person for any loss or damage that they suffered as a result of the offence;

  • (b) establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence;

  • (c) communicate those policies, standards and procedures to its representatives;

  • (d) report to the court on the implementation of those policies, standards and procedures;

  • (e) identify the senior officer who is responsible for compliance with those policies, standards and procedures;

  • (f) provide, in the manner specified by the court, the following information to the public, namely,

    • (i) the offence of which the organization was convicted,

    • (ii) the sentence imposed by the court, and

    • (iii) any measures that the organization is taking — including any policies, standards and procedures established under paragraph (b) — to reduce the likelihood of it committing a subsequent offence; and

  • (g) comply with any other reasonable conditions that the court considers desirable to prevent the organization from committing subsequent offences or to remedy the harm caused by the offence.

• Marginal note:Consideration — organizations

  (3.2) Before making an order under paragraph (3.1)(b), a court shall consider whether it would be more appropriate for another regulatory body to supervise the development or implementation of the policies, standards and procedures referred to in that paragraph.

• Marginal note: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.

• Marginal note: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 and, on request, to the victim;

  • (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.

• Marginal note:For greater certainty

  (6) For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation order.

• Marginal note:Notice — samples at regular intervals

  (7) The notice referred to in paragraph (3)(c.2) must specify the places and times at which and the days on which the offender must provide samples of a bodily substance under a condition described in that paragraph. The first sample may not be taken earlier than 24 hours after the offender is served with the notice, and subsequent samples must be taken at regular intervals of at least seven days.

• Marginal note:Designations and specifications

  (8) For the purposes of paragraphs (3)(c.1) and (c.2) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory shall, with respect to the province or territory,

  • (a) designate the persons or classes of persons that may take samples of bodily substances;

  • (b) designate the places or classes of places at which the samples are to be taken;

  • (c) specify the manner in which the samples are to be taken;

  • (d) specify the manner in which the samples are to be analyzed;

  • (e) specify the manner in which the samples are to be stored, handled and destroyed;

  • (f) specify the manner in which the records of the results of the analysis of the samples are to be protected and destroyed;

  • (g) designate the persons or classes of persons that may destroy the samples; and

  • (h) designate the persons or classes of persons that may destroy the records of the results of the analysis of the samples.

• Marginal note:Further designations

  (9) For the purpose of paragraph (3)(c.1) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory may, with respect to the province or territory, designate persons or classes of persons to make a demand for a sample of a bodily substance.

• Marginal note:Restriction

  (10) Samples of bodily substances referred to in paragraphs (3)(c.1) and (c.2) may not be taken, analyzed, stored, handled or destroyed, and the records of the results of the analysis of the samples may not be protected or destroyed, except in accordance with the designations and specifications made under subsection (8).

• Marginal note:Destruction of samples

  (11) The Attorney General of a province or the minister of justice of a territory, or a person authorized by the Attorney General or minister, shall cause all samples of bodily substances provided under a probation order to be destroyed within the periods prescribed by regulation unless the samples are reasonably expected to be used as evidence in a proceeding for an offence under section 733.1.

• Marginal note:Regulations

  (12) The Governor in Council may make regulations

  • (a) prescribing bodily substances for the purposes of paragraphs (3)(c.1) and (c.2);

  • (b) respecting the designations and specifications referred to in subsections (8) and (9);

  • (c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (11); and

  • (d) respecting any other matters relating to the samples of bodily substances.

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.

• Marginal note:Exception

  (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.

• Marginal note:Offence

  (4) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.

Marginal note: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.

• 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).