Conditional Sentences, Probation and Discharges (Script 203)

From Clicklaw Wikibooks

This script explains the following three penalties, called “sentences,” that a court can give if it convicts you of a crime under the Canadian Criminal Code or Controlled Drugs and Substances Act:

  • a conditional sentence.
  • a probation order.
  • a discharge.

The script does not:

  • discuss sentences under other federal laws (for example, the Fisheries Act) or provincial laws (for example, the Motor Vehicle Act); in those cases, the possible penalties and probation differ.
  • explain other possible sentences—fines, jail, or licence suspensions.
  • apply to anyone under 18 years old; for information about young people and criminal law, check scripts 225, called “Young People and Criminal Law” and 226, called “Youth Justice Court Trials”.

If you’re charged with a criminal offence, talk to a criminal defense lawyer before you plead guilty or admit anything to the police or prosecutor (also called Crown Counsel or Crown). A lawyer can tell you if you have a defense to the charge, or if the Crown can prove the case against you. Then you can decide what to do. Also, check scripts:

  • 211, called “Defending Yourself Against a Criminal Charge”
  • 212, called “Pleading Guilty to a Criminal Charge”
  • 205, called “Criminal Records and Applying for a Record Suspension”

What is a conditional sentence?

A conditional sentence is a jail sentence that you serve in the community, instead of in jail. Judges will use a conditional sentence only if they are satisfied that you won’t be a danger to the community and you don’t have a history of failing to obey court orders. A judge can’t give you a conditional sentence if the sentence is longer than 2 years, if the law sets a minimum jail term, or if the Criminal Code says the crime is not eligible for a conditional sentence. A conditional sentence usually has strict conditions, including a curfew or house arrest. If you disobey the conditions, a judge can send you to jail for the rest of the time left on your sentence.

What is a probation order?

A probation order is a sentence that requires you to follow certain conditions for a set time that can last up to 3 years. During that time, you must follow the terms of the probation order. Usually, that means you must keep the peace, be of good behaviour, report regularly to a probation officer, and keep the probation officer informed of your current address. Depending on the offence, you may also have to report to a probation officer periodically, avoid certain people, avoid using alcohol and drugs, attend counseling, pay back damages you caused to the victim, or perform community service. The judge still convicts you of the offence, but then suspends the sentence and releases you on probation.

Probation may be the only penalty, or it can be combined with other penalties, including a fine, a discharge, or a jail term less than 2 years. But a judge can’t give a person all three penalties of jail, a fine, and probation. You could get the following combinations: a fine and probation, or jail and probation, or jail and a fine. The judge may also order you to perform up to 240 community service hours and receive counseling.

Penalties if you don’t follow a probation order

If you don’t follow the terms of your probation, you can be charged with breach of probation. If you’re convicted of breach of probation, the court can cancel your probation and sentence you for both the original offence and breach of probation.

Breach of probation is a hybrid offence. That means the Crown decides whether to treat it as an indictable offence, for serious cases, or as a summary offence, for less serious cases. For an indictable offence, the maximum jail term is 4 years. For a first time, the normal penalty is a jail term of 7 days. For a summary offence, the maximum penalty is a $5,000 fine or 18 months’ probation, or both. For a first time, the normal penalty is a fine.

What is a discharge?

A discharge means that the judge finds you guilty, but then discharges you instead of convicting you. A discharge is usually available only for more minor offences and if you have no history of similar offences. You must convince the judge that a discharge is appropriate. The judge considers your character and whether a discharge is against public policy.

There are two types of discharge: absolute and conditional. Most discharges are conditional.

A conditional discharge means you’re on probation with conditions (described above). If you obey the conditions until the end of the probation, then the law treats you as if you had not been found guilty and you don’t have a criminal record. But if you don’t obey the conditions, or you don’t finish the probation, you can be charged with breach of probation. And the US considers probation for a conditional discharge as a conviction. So you may not want to try crossing the border until your discharge record has been removed from police records (explained below).

An absolute discharge means that you immediately have no criminal record.

Discharge records stay on file

The police and courts keep records of discharges under the Criminal Records Act. If you’re convicted of a criminal offence later, the court can consider your earlier discharge. And if the police check your record, they might see your discharge.

Removing discharge records

The RCMP removes from its records absolute discharges 1 year after the date of the sentence and conditional discharges 3 years after probation is finished. But for discharges before July 24, 1992, you must make a written request to remove the discharge.

If you want to ensure the RCMP remove your discharge, check their website on record suspensions and purges. (A “pardon” is now called a “record suspension”). Also, check script 205, called “Criminal Records and Applying for a Record Suspension”, for more information.

What other orders can a judge make?

If you get a conditional sentence, probation, or a conditional discharge, the judge can also:

  • make a “no go order” (or “no contact order”) to ensure you have no contact with a particular person or place.
  • prohibit you from having any firearms or other weapons, like knives.
  • order you to give a sample of your DNA for the DNA National Data Bank if the Crown asks for this.
  • make a compensation order allowing a person whose property you damaged to sue you in civil court.

Victim surcharge

The judge must also order you to pay a victim surcharge, which is 30% of any fine you got. If you didn’t get a fine, the surcharge is $100 for a summary offence (minor offence) and $200 for an indictable offence (more serious offense). The judge can also give you a higher surcharge. This surcharge is in addition to any other fine you get.

Even if you do not have money to pay the surcharge, the judge must still order it. But the judge can give you a long time (many years) to pay it. Or the judge can immediately find you in default for not paying the surcharge and give you a 1-day jail sentence. But you don’t have to go to jail because the judge can also find that you already served the jail time.

[updated March 2018]

The above was last reviewed for accuracy by Paul Briggs and Jordan Allingham, and edited by John Blois.

© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.

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