Probation/Suspended Sentences in Canada
What is Probation/A Suspended Sentence?
Following a guilty verdict, the court may decide to put off imposing a sentence, and instead, release the offender on a probation order for a set period of time.
This means that the released individual will have a specified list of conditions which they will be required to comply with during that time.
They will also be assigned a probation officer, who will check to ensure they are complying with their conditions.
While probationary terms may range from 6 months to 3 years, the typical length of probation is 12 to 24 months.
A suspended sentence may be ordered alone, or in addition to a fine, jail time, a conditional sentence order (CSO a.k.a house arrest), or a conditional discharge.
Who is Eligible for Probation/A Suspended Sentence?
To qualify for a probation order or suspended sentence, the judge must be satisfied that, among other things, you are a suitable candidate for community supervision.
This determination will likely be based on information about your:
- Past (e.g., criminal history/record);
- Present (e.g., your specific circumstances such as age); and
- Future (e.g., where you will reside while on probation, employment, etc.).
The court will consider your age, character, the type of offence, and the circumstances surrounding that offence.
If the offence you are guilty of has no minimum punishment required by law, the court may order a suspended sentence as your only punishment. However, they may also issue a probation order in addition to jail time not exceeding two years, or a fine.
The exact wording for ordering a probation order is set out in section 731(1) of the Criminal Code of Canada (the “Code”):
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.
The terms of a probation order may include:
- Reporting to a probation officer (typically every two weeks);
- Attending counselling;
- Repaying any damage incurred as a result of the offence;
- Abstaining from drugs or alcohol;
- Maintaining schooling or employment; and/or
- Anything else the court thinks is appropriate.
Failure to follow the terms of probation is its own separate criminal offence that can result in serious penalties, so it is very important to carefully negotiate all terms of your probation and alert the court if there are terms that you are not able to follow.
Examples include requesting that reporting be done by telephone when working out of town or requesting that the condition of having no weapons have an exception for work tools.
The judge will be able to craft the probation order to address your concerns, but they must be raised for the court to adjust them.
At Oykhman Criminal Defence, we have a long-standing record of successfully negotiating conditions that are the least onerous possible for you, while still satisfying the prosecutor and the judge hearing your case.
If you have any issues with your probation officer or with any aspects of your probation order, do not hesitate to contact one of our experienced criminal defence lawyers.
Through skillful advocacy it is often possible to request minor changes throughout your probation period, even after the conditions are set.
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