This part of the Criminal Code is quite boring. It's all procedure for sentancing people. I suggest ignoring it unless you actually need to look up the information. It's also quite long, so I will have to split it up into three nodes, this one being the 2nd.
Part XXIII: Section 1 of 3
Part XXIII: Section 3 of 3
Previous
Index
Definitions
732.1 (1) In this section and section 732.2,
"change" « modification »
"change", in relation to optional conditions, includes deletions and additions;
"optional conditions" « conditions facultatives »
"optional conditions" means the conditions referred to in subsection (3).
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;
(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.
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;
(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
(i) the consumption of alcohol or other intoxicating substances, or
(ii) the consumption of drugs except in accordance with a medical prescription;
(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.
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.
Proceedings on making order
(5) A court that makes a
probation order shall
(a) cause to be given to the offender
(i) a copy of the order,
(ii) an
explanation of the substance of subsections 732.2(3) and (5) and section 733.1, and
(iii) an explanation of the procedure for applying under subsection 732.2(3) 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; 1999, c. 32, s. 6(Preamble).
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, at the expiration of the conditional sentence.
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.
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.
Judge may act in chambers
(4) All the functions of the court under subsection (3) may be exercised in chambers.
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.
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.
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.
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.
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.
Failure to comply with probation order
733.1 (1) An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of
(a) an
indictable offence and is
liable to
imprisonment for a term not exceeding two years; or
(b) an offence punishable on summary conviction and is liable to imprisonment for a term not exceeding eighteen months, or to a fine not exceeding two thousand dollars, or both.
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.
Fines and
Forfeiture
Power of court to impose fine
734. (1) Subject to subsection (2), a court that convicts a person, other than a corporation, of an offence may fine the offender by making an order under section 734.1
(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.
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.
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.
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.
Determination of term
(5) The length, in days, of the term of imprisonment referred to in subsection (4) is the lesser of
(a) 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, expressed in days, that the court could itself impose on conviction.
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.
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).
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
(a)
calculated by a different method; or
(b) specified, either as a
minimum or a
maximum.
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.
Terms of order imposing fine
734.1 A court that fines an offender under section 734 shall do so by making an order that clearly sets out
(a) the amount of the fine;
(b) the manner in which the fine is to be paid;
(c) the time or times by which the fine, or any portion thereof, must be paid; and
(d) such other terms respecting the payment of the fine as the court deems appropriate.
1995, c. 22, s. 6.
Proceedings on making order
734.2 A court that makes an order under section 734.1 shall
(a) cause to be given to the offender
(i) a copy of the order,
(ii) an explanation of the substance of sections 734 to 734.8 and 736,
(iii) an explanation of available programs referred to in section 736 and of the procedure for applying for admission to such programs, and
(iv) an explanation of the procedure for applying under section 734.3 for a change in the terms of the order; 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.
Change in terms of order
734.3 A court that makes an order under section 734.1, or a person designated, either by name or by title of office, by that court, may, on application by or on behalf of the offender, subject to any rules made by the court under section 482, change any term of the order except the amount of the fine, and any reference in this section and sections 734, 734.1, 734.2 and 734.6 to an order shall be read as including a reference to the order as changed pursuant to this section.
1995, c. 22, s. 6.
Proceeds to go to provincial treasurer
734.4 (1) Where a fine or forfeiture is imposed or a recognizance is forfeited and no provision, other than this section, is made by law for the application of the proceeds thereof, the proceeds belong to Her Majesty in right of the province in which the fine or forfeiture was imposed or the recognizance was forfeited, and shall be paid by the person who receives them to the treasurer of that province.
Proceeds to go to Receiver General for
Canada
(2) Where
(a) a fine or forfeiture is imposed
(i) in respect of a contravention of a revenue law of Canada,
(ii) in respect of a breach of duty or malfeasance in office by an officer or employee of the Government of Canada, or
(iii) in respect of any proceedings instituted at the instance of the
Government of Canada in which that government bears the costs of prosecution, or
(b) a recognizance in connection with proceedings mentioned in paragraph (a) is forfeited,
the proceeds of the fine, forfeiture or recognizance belong to
Her Majesty in right of Canada and shall be paid by the person who receives them to the Receiver General.
Direction for payment to municipality
(3) Where a provincial, municipal or local
authority bears, in whole or in part, the expense of administering the law under which a fine or forfeiture is imposed or under which proceedings are taken in which a recognizance is forfeited,
(a) the lieutenant governor in council of a province may direct that the proceeds of a fine, forfeiture or recognizance that belongs to Her Majesty in right of the province shall be paid to that authority; and
(b) the
Governor in Council may direct that the proceeds of a fine, forfeiture or recognizance that belongs to Her Majesty in right of Canada shall be paid to that authority.
1995, c. 22, s. 6.
Licences, permits, etc.
734.5 If an offender is in default of payment of a fine,
(a) where the proceeds of the fine belong to Her Majesty in right of a province by virtue of subsection 734.4(1), the person responsible, by or under an Act of the legislature of the province, for issuing, renewing or suspending a licence, permit or other similar instrument in relation to the offender may refuse to issue or renew or may suspend the licence, permit or other instrument until the fine is paid in full, proof of which lies on the offender; or
(b) where the proceeds of the fine belong to Her Majesty in right of Canada by virtue of subsection 734.4(2), the person responsible, by or under an Act of
Parliament, for issuing or renewing a licence, permit or other similar instrument in relation to the offender may refuse to issue or renew or may suspend the licence, permit or other
instrument until the fine is paid in full, proof of which lies on the offender.
1995, c. 22, s. 6; 1999, c. 5, s. 34.
Civil
enforcement of fines, forfeiture
734.6 (1) Where
(a) an offender is in default of payment of a fine, or
(b) a forfeiture imposed by law is not paid as required by the order imposing it,
then, in addition to any other method provided by law for recovering the fine or forfeiture,
(c) the Attorney General of the province to whom the proceeds of the fine or forfeiture belong, or
(d) the Attorney General of Canada, where the proceeds of the fine or forfeiture belong to Her Majesty in right of Canada,
may, by filing the order, enter as a judgment the amount of the fine or forfeiture, and costs, if any, in any civil court in Canada that has jurisdiction to enter a judgment for that amount.
Effect of filing order
(2) An order that is entered as a judgment under this section is enforceable in the same manner as if it were a judgment obtained by the Attorney General of the province or the Attorney General of Canada, as the case may be, in civil proceedings.
1995, c. 22, s. 6.
Warrant of
committal
734.7 (1) Where time has been allowed for payment of a fine, the court shall not issue a warrant of committal in default of payment of the fine
(a) until the expiration of the time allowed for payment of the fine in full; and
(b) unless the court is satisfied
(i) that the mechanisms provided by sections 734.5 and 734.6 are not appropriate in the circumstances, or
(ii) that the offender has, without reasonable excuse, refused to pay the fine or discharge it under section 736.
Reasons for committal
(2) Where no time has been allowed for payment of a fine and a warrant committing the offender to prison for default of payment of the fine is issued, the court shall state in the warrant the reason for immediate committal.
Period of imprisonment
(2.1) The period of imprisonment in default of payment of the fine shall be specified in a warrant of committal referred to in subsection (1) or (2).
Compelling appearance of person bound
(3) 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 paragraph (1)(b).
Effect of imprisonment
(4) The imprisonment of an offender for default of payment of a fine terminates the operation of sections 734.5 and 734.6 in relation to that fine.
1995, c. 22, s. 6; 1999, c. 5, s. 35.
Definition of "
penalty"
734.8 (1) In this section, "penalty" means the aggregate of
(a) the fine, and
(b) the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection 734(7).
Reduction of imprisonment on part payment
(2) The term of imprisonment in default of payment of a fine shall, on payment of a part of the penalty, whether the payment was made before or after the execution of a warrant of committal, be reduced by the number of days that bears the same proportion to the number of days in the term as the part paid bears to the total penalty.
Minimum that can be accepted
(3) No amount offered in part payment of a penalty shall be accepted after the execution of a warrant of committal unless it is sufficient to secure a reduction of sentence of one day, or a whole number multiple of one day, and no part payment shall be accepted until any fee that is payable in respect of the warrant or its execution has been paid.
To whom payment made
(4) Payment may be made under this section to the person that the Attorney General directs or, if the offender is imprisoned, to the person who has lawful custody of the prisoner or to any other person that the Attorney General directs.
Application of money paid
(5) A payment under this section shall be applied firstly to the payment in full of costs and charges, secondly to the payment in full of any
victim surcharge imposed under section 737, and then to payment of any part of the fine that remains unpaid.
1995, c. 22, s. 6; 1999, c. 5, s. 36, c. 25, s. 19(Preamble).
Fines on
corporations
735. (1) A corporation that is convicted of an offence is liable, in lieu of any imprisonment that is prescribed as punishment for that offence, to be fined in an amount, except where otherwise provided by law,
(a) that is in the discretion of the court, where the offence is an indictable offence; or
(b) not exceeding twenty-five thousand dollars, where the offence is a summary conviction offence.
Application of certain provisions -- fines
(1.1) A court that imposes a fine under subsection (1) or under any other Act of Parliament shall make an order that clearly sets out
(a) the amount of the fine;
(b) the manner in which the fine is to be paid;
(c) the time or times by which the fine, or any portion of it, must be paid; and
(d) any other terms respecting the payment of the fine that the court deems appropriate.
Effect of filing order
(2) Section 734.6 applies, with any modifications that are required, when a corporate offender fails to pay the fine in accordance with the terms of the order.
R.S., 1985, c. C-46, s. 735; R.S., 1985, c. 1 (4th Supp.), s. 18(F), c. 23 (4th Supp.), s. 7; 1995, c. 22, s. 6; 1999, c. 5, s. 37.
Fine option program
736. (1) An offender who is fined under section 734 may, whether or not the offender is serving a term of imprisonment imposed in default of payment of the fine, discharge the fine in whole or in part by earning credits for work performed during a period not greater than two years in a program established for that purpose by the lieutenant governor in council
(a) of the province in which the fine was imposed, or
(b) of the province in which the offender resides, where an appropriate agreement is in effect between the government of that province and the government of the province in which the fine was imposed,
if the offender is admissible to such a program.
Credits and other matters
(2) A program referred to in subsection (1) shall determine the rate at which credits are earned and may provide for the manner of crediting any amounts earned against the fine and any other matters necessary for or incidental to carrying out the program.
Deemed payment
(3) Credits earned for work performed as provided by subsection (1) shall, for the purposes of this Act, be deemed to be payment in respect of a fine.
Federal-provincial agreement
(4) Where, by virtue of subsection 734.4(2), the proceeds of a fine belong to Her Majesty in right of Canada, an offender may discharge the fine in whole or in part in a fine option program of a province pursuant to subsection (1), where an appropriate agreement is in effect between the government of the province and the
Government of Canada.
R.S., 1985, c. C-46, s. 736; R.S., 1985, c. 27 (1st Supp.), s. 162, c. 1 (4th Supp.), s. 18(F); 1992, c. 1, s. 60(F); 1995, c. 22, s. 6.
Victim surcharge
737. (1) Subject to subsection (5), an offender who is convicted or discharged under section 730 of an offence under this Act or the Controlled Drugs and Substances Act shall pay a victim surcharge, in addition to any other punishment imposed on the offender.
Amount of surcharge
(2) Subject to subsection (3), the amount of the victim surcharge in respect of an offence is
(a) 15 per cent of any fine that is imposed on the offender for the offence; or
(b) if no fine is imposed on the offender for the offence,
(i) $50 in the case of an offence punishable by summary conviction, and
(ii) $100 in the case of an offence punishable by indictment.
Increase in surcharge
(3) The court may order an offender to pay a victim surcharge in an amount exceeding that set out in subsection (2) if the court considers it appropriate in the circumstances and is satisfied that the offender is able to pay the higher amount.
Time for payment
(4) The victim surcharge imposed in respect of an offence is payable at the time at which the fine imposed for the offence is payable and, when no fine is imposed, within the time established by the lieutenant governor in council of the province in which the surcharge is imposed for payment of any such surcharge.
Exception
(5) When the offender establishes to the satisfaction of the court that undue hardship to the offender or the dependants of the offender would result from payment of the victim surcharge, the court may, on application of the offender, make an order exempting the offender from the application of subsection (1).
Reasons
(6) When the court makes an order under subsection (5), the court shall state its reasons in the record of the proceedings.
Amounts applied to aid victims
(7) A victim surcharge imposed under subsection (1) shall be applied for the purposes of providing such assistance to victims of offences as the lieutenant governor in council of the province in which the surcharge is imposed may direct from time to time.
Notice
(8) The court shall cause to be given to the offender a written notice setting out
(a) the amount of the victim surcharge;
(b) the manner in which the victim surcharge is to be paid;
(c) the time by which the victim surcharge must be paid; and
(d) the procedure for applying for a change in any terms referred to in paragraphs (b) and (c) in accordance with section 734.3.
Enforcement
(9) Subsections 734(3) to (7) and sections 734.3, 734.5, 734.7 and 734.8 apply, with any modifications that the circumstances require, in respect of a victim surcharge imposed under subsection (1) and, in particular,
(a) a reference in any of those provisions to "fine", other than in subsection 734.8(5), must be read as if it were a reference to "victim surcharge"; and
(b) the notice provided under subsection (8) is deemed to be an order made under section 734.1.
Section 736 does not apply
(10) For greater certainty, the program referred to in section 736 for the discharge of a fine may not be used in respect of a victim surcharge.
R.S., 1985, c. C-46, s. 737; 1995, c. 22, ss. 6, 18; 1996, c. 19, s. 75; 1999, c. 5, s. 38, c. 25, s. 20(Preamble).
Restitution
Restitution to victims of offences
738. (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:
(a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable;
(b) in the case of bodily harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages, including loss of income or support, incurred as a result of the bodily harm, where the amount is readily ascertainable; and
(c) in the case of bodily harm or threat of bodily harm to the offender's spouse or common-law partner or child, or any other person, as a result of the commission of the offence or the arrest or attempted arrest of the offender, where the spouse or common-law partner, child or other person was a member of the offender's household at the relevant time, by paying to the person in question, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount not exceeding actual and reasonable expenses incurred by that person, as a result of moving out of the offender's household, for temporary housing, food, child care and transportation, where the amount is readily ascertainable.
Regulations
(2) The lieutenant governor in council of a province may make regulations precluding the inclusion of provisions on enforcement of restitution orders as an optional condition of a probation order or of a conditional sentence order.
R.S., 1985, c. C-46, s. 738; 1995, c. 22, s. 6; 2000, c. 12, s. 95.
Restitution to persons acting in good faith
739. Where an offender is convicted or discharged under section 730 of an offence and
(a) any property obtained as a result of the commission of the offence has been conveyed or transferred for valuable consideration to a person acting in good faith and without notice, or
(b) the offender has borrowed money on the security of that property from a person acting in good faith and without notice,
the court may, where that property has been returned to the lawful owner or the person who had lawful possession of that property at the time the offence was committed, order the offender to pay as restitution to the person referred to in paragraph (a) or (b) an amount not exceeding the amount of consideration for that property or the total amount outstanding in respect of the loan, as the case may be.
R.S., 1985, c. C-46, s. 739; R.S., 1985, c. 27 (1st Supp.), s. 163, c. 1 (4th Supp.), s. 18(F); 1995, c. 22, s. 6.
Priority to restitution
740. Where the court finds it applicable and appropriate in the circumstances of a case to make, in relation to an offender, an order of restitution under section 738 or 739, and
(a) an order of forfeiture under this or any other Act of Parliament may be made in respect of property that is the same as property in respect of which the order of restitution may be made, or
(b) the court is considering ordering the offender to pay a fine and it appears to the court that the offender would not have the means or ability to comply with both the order of restitution and the order to pay the fine,
the court shall first make the order of restitution and shall then consider whether and to what extent an order of forfeiture or an order to pay a fine is appropriate in the circumstances.
R.S., 1985, c. C-46, s. 740; 1995, c. 22, s. 6.
Enforcing restitution order
741. (1) Where an amount that is ordered to be paid under section 738 or 739 is not paid forthwith, the person to whom the amount was ordered to be paid may, by filing the order, enter as a judgment the amount ordered to be paid in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.
Moneys found on offender
(2) All or any part of an amount that is ordered to be paid under section 738 or 739 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.
R.S., 1985, c. C-46, s. 741; R.S., 1985, c. 27 (1st Supp.), s. 164; 1995, c. 22, s. 6.
Notice of orders of restitution
741.1 Where a court makes an order of restitution under section 738 or 739, it shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid.
R.S., 1985, c. 24 (2nd Supp.), s. 47; 1992, c. 11, s. 14, c. 20, s. 202; 1995, c. 19, s. 37, c. 22, s. 6.
Civil remedy not affected
741.2 A civil remedy for an act or omission is not affected by reason only that an order for restitution under section 738 or 739 has been made in respect of that act or omission.
1992, c. 20, s. 203; 1995, c. 22, s. 6, c. 42, s. 75.
Conditional Sentence of Imprisonment
Definitions
742. In sections 742.1 to 742.7,
"change" « modification »
"change", in relation to optional conditions, includes deletions and additions;
"optional conditions" « conditions facultatives »
"optional conditions" means the conditions referred to in subsection 742.3(2);
"
supervisor" « agent de surveillance »
"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.
Imposing of conditional sentence
742.1 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.
Firearm, etc., prohibitions
742.2 (1) Before imposing a conditional sentence under section 742.1, the court shall consider whether section 100 is applicable.
Idem
(2) 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.
Compulsory conditions of conditional sentence order
742.3 (1) 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.
Optional conditions of conditional sentence order
(2) 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.
Proceedings on making order
(3) 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.
Supervisor may propose changes to optional conditions
742.4 (1) 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.
Hearing
(2) 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).
Decision at hearing
(3) 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.
Where no hearing requested or ordered
(4) 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.
Changes proposed by offender or prosecutor
(5) 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).
Judge may act in chambers
(6) All the functions of the court under this section may be exercised in chambers.
1995, c. 22, s. 6; 1999, c. 5, s. 39.
Transfer of order
742.5 (1) 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.
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 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.
Where court unable to act
(2) 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.
Procedure on breach of condition
742.6 (1) 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.
Interim release
(2) 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).
Hearing
(3) 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).
Place
(3.1) 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.
Attorney General's consent
(3.2) 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.
Adjournment
(3.3) A judge may, at any time during a hearing of an allegation of breach of condition, adjourn the hearing for a reasonable period.
Report of
supervisor
(4) 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.
Admission of report on notice of intent
(5) 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.
Proof of service
(6) 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.
Attendance for examination
(7) 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.
Requiring
attendance of supervisor or witness
(8) 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.
Powers of court
(9) 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.
Warrant or
arrest -- suspension of running of conditional sentence
(10) 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).
Conditions continue
(11) 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.
Detention under s. 515(6)
(12) 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.
Earned
remission does not apply
(13) Section 6 of the Prisons and Reformatories Act does not apply to the period of detention in custody under subsection 515(6).
Unreasonable delay in
execution
(14) 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).
Allegation dismissed or reasonable excuse
(15) 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.
Powers of court
(16) 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.
Considerations
(17) 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.
If person imprisoned for new offence
742.7 (1) 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.
Breach of condition
(2) 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.
Multiple
sentences
(3) 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.
Conditional sentence resumes
(4) 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.
Imprisonment
Imprisonment when no other provision
743. Every one who is convicted of an indictable offence for which no punishment is specially provided is liable to imprisonment for a term not exceeding five years.
R.S., 1985, c. C-46, s. 743; 1992, c. 11, s. 16; 1995, c. 22, s. 6.
Part XXIII: Section 1 of 3
Part XXIII: Section 3 of 3
Next
Part XXIV
Dangerous Offenders and Long-Term Offenders