Conditional Sentence of Improsonment

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CONDITIONAL SENTENCE
OF IMPRISONMENT

742. Definitions - In sections 742.1 to 742.7,
	"change", in relation to optional conditions, includes deletions and additions;
	"optional conditions" means the conditions referred to in subsection 742.3(2);
	"supervisor" means a person designated by the Attorney General, either by name or by title of office, as a supervisor for the purposes of sections 742.1 to 742.7.
R.S., 1985, c. C-46, s. 742; R.S., 1985, c. 27 (1st Supp.), s. 165; 1992, c. 11, s. 15; 1995, c. 22, s. 6.

742.1 Imposing of conditional sentence - Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court
(a)		imposes a sentence of imprisonment of less than two years, and
(b)		is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,
the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.
1992, c. 11, s. 16; 1995, c. 19, s. 38, c. 22, s. 6; 1997, c. 18, s. 107.1.

742.2 (1) Firearm, etc., prohibitions - Before imposing a conditional sentence under section 742.1, the court shall consider whether section 100 is applicable.
(2) Idem - For greater certainty, a condition of a conditional sentence referred to in paragraph 742.3(2)(b) does not affect the operation of section 100.
1995, c. 22, s. 6.

742.3 (1) Compulsory conditions of conditional sentence order - The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:
(a)		keep the peace and be of good behaviour;
(b)		appear before the court when required to do so by the court;
(c)		report to a supervisor
		(i)	within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
		(ii)	thereafter, when required by the supervisor and in the manner directed by the supervisor;
(d)		remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
(e)		notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.
(2) Optional conditions of conditional sentence order - The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:
(a)		abstain from
		(i)	the consumption of alcohol or other intoxicating substances, or
		(ii)	the consumption of drugs except in accordance with a medical prescription;
(b)		abstain from owning, possessing or carrying a weapon;
(c)		provide for the support or care of dependants;
(d)		perform up to 240 hours of community service over a period not exceeding eighteen months;
(e)		attend a treatment program approved by the province; and
(f)		comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.
(3) Proceedings on making order - A court that makes an order under this section shall
(a)		cause to be given to the offender
		(i)	a copy of the order,
		(ii)	an explanation of the substance of sections 742.4 and 742.6, and
		(iii)	an explanation of the procedure for applying under section 742.4 for a change to the optional conditions; and
(b)		take reasonable measures to ensure that the offender understands the order and the explanations given to the offender under paragraph (a).
1995, c. 22, s. 6.

742.4 (1) Supervisor may propose changes to optional conditions - Where an offender's supervisor is of the opinion that a change in circumstances makes a change to the optional conditions desirable, the supervisor shall give written notification of the proposed change, and the reasons for it, to the offender, to the prosecutor and to the court.
(2) Hearing - Within seven days after receiving a notification referred to in subsection (1),
(a)		the offender or the prosecutor may request the court to hold a hearing to consider the proposed change, or
(b)		the court may, of its own initiative, order that a hearing be held to consider the proposed change,
and a hearing so requested or ordered shall be held within thirty days after the receipt by the court of the notification referred to in subsection (1).
(3) Decision at hearing - At a hearing held pursuant to subsection (2), the court
(a)		shall approve or refuse to approve the proposed change; and
(b)		may make any other change to the optional conditions that the court deems appropriate.
(4) Where no hearing requested or ordered - Where no request or order for a hearing is made within the time period stipulated in subsection (2), the proposed change takes effect fourteen days after the receipt by the court of the notification referred to in subsection (1), and the supervisor shall so notify the offender and file proof of that notification with the court.
(5) Changes proposed by offender or prosecutor - Subsections (1) and (3) apply, with such modifications as the circumstances require, in respect of a change proposed by the offender or the prosecutor to the optional conditions, and in all such cases a hearing must be held, and must be held within thirty days after the receipt by the court of the notification referred to in subsection (1).
(6) Judge may act in chambers - All the functions of the court under this section may be exercised in chambers.
1995, c. 22, s. 6; 1999, c. 5, s. 39.

742.5 (1) Transfer of order - Where an offender who is bound by a conditional sentence order becomes a resident of a territorial division, other than the territorial division where the order was made, on the application of a supervisor, 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.
(1.1) Attorney General's consent - The transfer may be granted only with
(a)		the consent of the Attorney General of the province in which the conditional sentence 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 conditional sentence order were instituted by or on behalf of the Attorney General of Canada.
(2) Where court unable to act - Where a court that has made a conditional sentence order or to which a conditional sentence order has been transferred pursuant to subsection (1) is for any reason unable to act, the powers of that court in relation to the conditional sentence order may be exercised by any other court that has equivalent jurisdiction in the same province.
1995, c. 22, s. 6; 1999, c. 5, s. 40.

742.6 (1) Procedure on breach of condition - For the purpose of proceedings under this section,
(a)		the provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice apply, with any modifications that the circumstances require, and any reference in those Parts to committing an offence shall be read as a reference to breaching a condition of a conditional sentence order;
(b)		the powers of arrest for breach of a condition are those that apply to an indictable offence, with any modifications that the circumstances require, and subsection 495(2) does not apply;
(c)		despite paragraph (a), if an allegation of breach of condition is made, the proceeding is commenced by
		(i)	the issuance of a warrant for the arrest of the offender for the alleged breach,
		(ii)	the arrest without warrant of the offender for the alleged breach, or
		(iii)	the compelling of the offender's appearance in accordance with paragraph (d);
(d)		if the offender is already detained or before a court, the offender's appearance may be compelled under the provisions referred to in paragraph (a);
(e)		if an offender is arrested for the alleged breach, the peace officer who makes the arrest, the officer in charge or a judge or justice may release the offender and the offender's appearance may be compelled under the provisions referred to in paragraph (a); and
(f)		any judge of a superior court of criminal jurisdiction or of a court of criminal jurisdiction or any justice of the peace may issue a warrant to arrest no matter which court, judge or justice sentenced the offender, and the provisions that apply to the issuance of telewarrants apply, with any modifications that the circumstances require, as if a breach of condition were an indictable offence.
(2) Interim release - For the purpose of the application of section 515, the release from custody of an offender who is detained on the basis of an alleged breach of a condition of a conditional sentence order shall be governed by subsection 515(6).
(3) Hearing - The hearing of an allegation of a breach of condition shall be commenced within thirty days, or as soon thereafter as is practicable, after
(a)		the offender's arrest; or
(b)		the compelling of the offender's appearance in accordance with paragraph (1)(d).
(3.1) Place - The allegation may be heard by any court having jurisdiction to hear that allegation in the place where the breach is alleged to have been committed or the offender is found, arrested or in custody.
(3.2) Attorney General's consent - If the place where the offender is found, arrested or in custody is outside the province in which the breach is alleged to have been committed, no proceedings in respect of that breach shall be instituted in that place without
(a)		the consent of the Attorney General of the province in which the breach is alleged to have been committed; or
(b)		the consent of the Attorney General of Canada, if the proceedings that led to the issuance of the conditional sentence order were instituted by or on behalf of the Attorney General of Canada.
(3.3) Adjournment - A judge may, at any time during a hearing of an allegation of breach of condition, adjourn the hearing for a reasonable period.
(4) Report of supervisor - An allegation of a breach of condition must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses.
(5) Admission of report on notice of intent - The report is admissible in evidence if the party intending to produce it has, before the hearing, given the offender reasonable notice and a copy of the report.
(6) Proof of service -Service of any report referred to in subsection (4) may be proved by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served it.
(7) Attendance for examination - Notwithstanding subsection (6), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of service.
(8) Requiring attendance of supervisor or witness - The offender may, with leave of the court, require the attendance, for cross-examination, of the supervisor or of any witness whose signed statement is included in the report.
(9) Powers of court - Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may
(a)		take no action;
(b)		change the optional conditions;
(c)		suspend the conditional sentence order and direct
		(i)	that the offender serve in custody a portion of the unexpired sentence, and
		(ii)	that the conditional sentence order resume on the offender's release from custody, either with or without changes to the optional conditions; or
(d)		terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.
(10) Warrant or arrest -- suspension of running of conditional sentence - The running of a conditional sentence imposed on an offender is suspended during the period that ends with the determination of whether a breach of condition had occurred and begins with the earliest of
(a)		the issuance of a warrant for the arrest of the offender for the alleged breach,
(b)		the arrest without warrant of the offender for the alleged breach, and
(c)		the compelling of the offender's appearance in accordance with paragraph (1)(d).
(11) Conditions continue - If the offender is not detained in custody during any period referred to in subsection (10), the conditions of the order continue to apply, with any changes made to them under section 742.4, and any subsequent breach of those conditions may be dealt with in accordance with this section.
(12) Detention under s. 515(6) - A conditional sentence referred to in subsection (10) starts running again on the making of an order to detain the offender in custody under subsection 515(6) and, unless section 742.7 applies, continues running while the offender is detained under the order.
(13) Earned remission does not apply - Section 6 of the Prisons and Reformatories Act does not apply to the period of detention in custody under subsection 515(6).
(14) Unreasonable delay in execution - Despite subsection (10), if there was unreasonable delay in the execution of a warrant, the court may, at any time, order that any period between the issuance and execution of the warrant that it considers appropriate in the interests of justice is deemed to be time served under the conditional sentence unless the period has been so deemed under subsection (15).
(15) Allegation dismissed or reasonable excuse - If the allegation is withdrawn or dismissed or the offender is found to have had a reasonable excuse for the breach, the sum of the following periods is deemed to be time served under the conditional sentence:
(a)		any period for which the running of the conditional sentence was suspended; and
(b)		if subsection (12) applies, a period equal to one half of the period that the conditional sentence runs while the offender is detained under an order referred to in that subsection.
(16) Powers of court - If a court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may, in exceptional cases and in the interests of justice, order that some or all of the period of suspension referred to in subsection (10) is deemed to be time served under the conditional sentence.
(17) Considerations - In exercising its discretion under subsection (16), a court shall consider
(a)		the circumstances and seriousness of the breach;
(b)		whether not making the order would cause the offender undue hardship based on the offender's individual circumstances; and
(c)		the period for which the offender was subject to conditions while the running of the conditional sentence was suspended and whether the offender complied with those conditions during that period.
1995, c. 22, s. 6; 1999, c. 5, s. 41.

742.7 (1) If person imprisoned for new offence - If an offender who is subject to a conditional sentence is imprisoned as a result of a sentence imposed for another offence, whenever committed, the running of the conditional sentence is suspended during the period of imprisonment for that other offence.
(2) Breach of condition - If an order is made under paragraph 742.6(9)(c) or (d) to commit an offender to custody, the custodial period ordered shall, unless the court considers that it would not be in the interests of justice, be served consecutively to any other period of imprisonment that the offender is serving when that order is made.
(3) Multiple sentences - If an offender is serving both a custodial period referred to in subsection (2) and any other period of imprisonment, the periods shall, for the purpose of section 743.1 and section 139 of the Corrections and Conditional Release Act, be deemed to constitute one sentence of imprisonment.
(4) Conditional sentence resumes - The running of any period of the conditional sentence that is to be served in the community resumes upon the release of the offender from prison on parole, on statutory release, on earned remission, or at the expiration of the sentence.
1995, c. 22, s. 6; 1999, c. 5, s. 42.
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