What is a conditional sentence order?
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A conditional sentence order is an order made by a judge that an offender’s sentence will be a conditional sentence. Often called house arrest, a conditional sentence is a jail sentence served in the community under supervision and certain conditions, instead of in an actual jail. Conditional sentences cannot be more than 24 months long.
If you receive a conditional sentence, you will have to probation and will likely be under 24-hour house arrest, with exceptions for things like school, work, medical appointments, religious service attendance, and shopping for necessities (such as groceries).
Can I get a conditional sentence order instead of jail?
Conditional sentences can only be ordered for certain offences. The Criminal Code recently made conditional sentence orders available for more crimes and in more situations, but the following requirements still apply:
- The term of imprisonment must be less than two years to be served in the community (under a conditional sentence order).
- The offence must not have a mandatory minimum prison sentence.
- The offence is not attempt to commit murder, torture, or advocating genocide.
- The offence is not an indictable terrorism or criminal organization offence with a maximum prison sentence of 10 years or more.
- The court must be 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 principle of sentencing…”.
If requirements 1-4 above are met, then it will be up to your defence lawyer to argue why requirement five is also met. This will depend on your circumstances, and the circumstances of the offence.
What conditions does a conditional sentence order have?
A conditional sentence must have some conditions, which are called mandatory conditions, and may have other conditions, which are called optional conditions.
Mandatory conditions are to keep the peace and be of good behaviour, appear in court when required, report to a supervisor (probation officer) within two days and afterward as required by the supervisor, stay within the court’s jurisdiction unless your supervisor gives you written permission to leave, and promptly tell the court or your supervisor about any change in your name, address, or job.
There are many optional conditions. Some commonly ordered optional conditions are to abstain from alcohol and unprescribed drugs, not contact the victim, not possess a weapon, perform community serious, and attend for treatment, such as counselling.
The optional conditions ordered will depend on the circumstances of you and the offence.
If you do not follow one or more of your conditions, then that is considered a breach of the conditional sentence order.
What happens if I am accused of breaching a conditional sentence order?
If you are accused of breaching a conditional sentence order, then you will be imprisoned in a remand centre (jail) until you are either released on bail, or you have a breach hearing. In a conditional sentence order breach bail hearing, you must prove why you should not be held in custody, instead of the crown prosecutor having to prove why you should be held in custody.
According to the Criminal Code, a conditional sentence order breach hearing must be held within 30 days of the alleged breach or “as soon as practicable”.
The time that you are being held in remand waiting for a breach hearing does not normally count toward pre-custody credit if you ultimately receive a prison sentence. This is because a conditional sentence order breach hearing is considered part of the sentencing process, not a new charge.
At the breach hearing, the crown prosecutor has the burden of proving that it is more likely than not that you breached one or more term of your conditional sentence order. This includes proving that your actions that caused the breach were “willful” and not completely accidental. The crown prosecutor also must produce a written report signed by your conditional sentence order supervisor (probation officer) with signed witness statements where appropriate, and they must give you reasonable notice and a copy of that report.
If the crown prosecutor proves that you breached, then it will be up to you (or your lawyer) to prove that you had a reasonable excuse for your breach. If you cannot provide a reasonable excuse, then the judge will decide what to do about your breach. This will usually be the same judge who sentenced you for the original offence – the offence for which you were sentenced to a conditional sentence order in the first place.
What happens if I breach a conditional sentence order?
If a judge decides that you breached a conditional sentence order, then the judge has four choices:
- Do nothing (this is rare).
- Change the optional conditions (usually adding more or more onerous conditions).
- Suspend the conditional sentence order and either order that you go to jail for the rest of the sentence or that you are released from custody with or without changes to the optional conditions.
- Terminate the conditional sentence order and send you to jail for the rest of your sentence (this is common).
For example, if you receive a 24-month conditional sentence and you breach it after 10 months, and the judge chooses option four, then you will have to spend the next 14 months in jail.