Probation is a sentencing option available to judges after a finding of guilt. If an accused receives a conditional discharge or a suspended sentence, probation will always form part of the sentence. The maximum length a probation order can be is three years.
A probation order must contain the following mandatory conditions:
•(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.
The Criminal Code sets out other conditions that may be included in a probation order. These conditions are:
•· report to a probation officer within two working days, or such longer period as the court directs, after the making of the probation order, and thereafter, when required by the probation officer and in the manner directed by the probation officer;
•· remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;
•· abstain from the consumption of alcohol or other intoxicating substances or the consumption of drugs except in accordance with a medical prescription;
•· abstain from owning, possessing or carrying a weapon;
•· provide for the support or care of dependants;
•· perform up to 240 hours of community service over a period not exceeding eighteen months.
•· 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;
•· 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;
•· 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
•· 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.
Sentencing is highly individualized. The optional probation conditions in the Criminal Code recognize this and allow judges to craft a unique probation order for every accused, provided the probationary conditions they impose are reasonable. The conditions of the probation order are not meant to be in response to the seriousness of the offence or be punitive in nature. The goal and intent of probation orders are to assist an accused in rehabilitation. As such, the conditions should be crafted to assist the accused in their rehabilitation while ensuring they do not commit further offences. Protection of the public is also a consideration. The judge will always keep in mind the circumstances of the offence and of the offender when crafting appropriate conditions.
Normally conditions are linked to the offence; however, that is not always the case. If they are not linked to the case the conditions must be designed to protect society and help reintegrate the accused into society. Conditions cannot be ambiguous and must be enforceable. In addition, conditions that cannot be realistically complied with should not be imposed.
If an accused is given optional conditions, such as restitution or community service hours, which require follow up to ensure they have been completed, the accused will in most cases also be given a condition to report to a probation officer. In most cases the Judge leaves the frequency of reporting up to the discretion of the probation officer. Usually, it will be biweekly or monthly; however, it could be more or less frequent depending on the accused.
If an accused does not comply with the conditions of their probation order, without a reasonable excuse, they will likely be charged with a breach of probation. If this happens the accused would be facing a new criminal charge and potentially jail time. Sometimes the sentence on a breach of probation could be worse than the original sentence. Be sure to speak to a lawyer about your probationary conditions to ensure you understand them and are able to comply them.