Release Conditions, Probation and Conditional Sentences

Release Conditions, Probation, AND Conditional Sentences

Once you have been charged with a criminal offence, you may be released pending your first court appearance, either by a police officer, justice of the peace or judge. Often your release will come with certain conditions that you must comply with. 

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In the past, those forms of release were known as undertakings or recognizances. Going forward, Parliament has changed forms of release to be called appearance notices, undertakings to peace officers, and release orders. The conditions imposed at that pre-trial stage remain in place until your criminal charge has been dealt with or until such time as the conditions have been removed by the court. 

Failing to Comply with Release Conditions

The offence of failing to comply with release conditions involves allegations that conditions were not abided by, and as such, police or your supervising release officer will lay a new charge under one of several sections of the Criminal Code. These offences are stand-alone offences. 

Some examples of the types of conditions which are commonly imposed as part of pre-trial release are as follows:

  • Keep the peace and be of good behaviour.
  • Report to police or probation as required.
  • Attend court for your criminal matter as required.
  • Abstain from the use or possession of alcohol or drugs.
  • Refrain from possessing weapons.
  • Remain in the province or a specific jurisdiction.
  • Avoid communicating with certain individuals.
  • Avoid attending at certain locations. 

These conditions or undertakings remain in place until your criminal charge has been dealt with or the conditions have been removed in court.

Since abiding by these court-imposed conditions is required, you may be charged with an additional criminal offence if you fail to abide by one or more of your conditions. In those circumstances, you may be charged with:

  • Failure to comply with an undertaking (condition of release) by a peace officer.
  • Failure to comply with a judicially imposed release order.

Failure to Comply with a Probation Order

Probation orders and conditional discharges are two types sentences that will result in conditions being imposed as part of the sentence. The types of conditions that may be imposed are often similar to the types of conditions that are imposed pre-conviction as part of release, but may include additional conditions such as the following:

  • Community service hours.
  • Restitution paid to a complainant.
  • Curfew or house arrest.
  • Counselling and/or treatment for addictions, domestic violence, anger management, or psychiatric treatment.

These conditions or undertakings remain in place until your term of probation or conditional discharge is over, or the conditions have been removed in court.

An allegation of failing to comply with the conditions imposed by a probation order or conditional discharge may result in a criminal charge. Abiding by a probation order or conditional discharge is mandatory, and if you do not abide you may be charged with failing to comply with a probation order. 

If you are then found guilty, this in turn may have other consequences, such as revoking the conditional discharge or probation order and being re-sentenced on your original charge. Because of this, failure to comply charges can be quite serious. 

The Burden of Proof

In order to find you guilty of a failure to comply, the crown must establish beyond a reasonable doubt that:

  • You were bound to follow the prescribed conditions set out in your bail order, probation order, or as part of your conditional discharge.
  • You breached one or more of those conditions.
  • You intended to breach the conditions.

You may be able to avoid a conviction for failure to comply if the facts reveal that one or more of these key elements was missing. 

Potential Outcomes – Failing to Comply with Release or Probation

If you are already facing serious or even minor criminal charges, then you may not fully appreciate why the added accusation of a failure to comply should be of particular concern. 

It is a fundamental principle of our Canadian justice system that court orders and directions are respected and adhered to; courts take a harsh stance against those who refuse to do so. Non-compliance is a serious charge with serious consequences.

If a court finds that you have breached any conditions or otherwise failed to comply with these restrictions, it will be considered a separate criminal offence – in addition to the original crime of which you are accused. 

This can have serious repercussions to the underlying offence which originally bound you by conditions. For example, if you received a conditional discharge and are then convicted of failing to comply with the conditions of the discharge, the court may revoke your discharge, convict you of your original charge and impose a new sentence altogether. 

Any sentence you receive upon conviction for a failure to comply offence will be in addition to the sentence you may receive for your initial, underlying crime. You may also face an assortment of other penalties, such as having your bail revoked.

If you are found guilty this will usually hamper your ability to obtain bail in the future, should you be arrested for a new offence.

Failing to Comply with a Conditional Sentence Order

A conditional sentence order is a type of sentence that is available in certain circumstances, and which will result in conditions being imposed as part of the sentence. This type of sentence is considered a jail term that is served and supervised in the community, akin to house arrest. 

Conditional sentence orders have a prescribed set of conditions that always arise for the offender when it is imposed, and which must be abided by. These are:

  • Keep the peace and be of good behaviour.
  • Appear before the court when required.
  • Report to a supervisor within two working days, or such as the court directs, and thereafter when required.
  • Remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or a supervisor.
  • Notify the court or a supervisor of a change of address, name, employment or occupation. 

The court also has several other discretionary conditions that they may impose in addition to the above, such as abstaining from drugs or alcohol. If you do not comply with any of the mandatory or discretionary conditions imposed, you may be found to have breached your conditional sentence order. 

While breaching a conditional sentence order will not result in an additional criminal charge, it may have serious implications on how and where the remainder of your sentence is served.

Potential Outcomes – Failing to Comply with a Conditional Sentence Order

Breaching a conditional sentence order is considered serious. If the court is satisfied on a balance of probabilities that you have breached a condition of your conditional sentence order, it may take action against your original sentence. Specifically, if the court finds that you have breached your order, the court has many options, including:

  • Take no action.
  • Change the optional conditions.
  • Resume the conditional sentence order with or without a change of conditions.
  • Suspend the conditional sentence order and direct that you serve a portion of the unexpired sentence in custody.
  • Terminate the conditional sentence order and direct that you serve the entirety of your remaining sentence in custody. 

There may also be situations where an alleged breach is not established, and the conditional sentence order is not changed. For example, if you can prove that you had a reasonable excuse for a breach of condition, the court will not have the power to take action to change your conditional sentence order. However, what the court considers a reasonable excuse will vary depending on the circumstances.

I am here to help! Call me to discuss your failure to comply charge or breach allegation. 

A charge of failure to comply can put you in jeopardy of being convicted of a separate, additional charge to the one that initially put you on conditions in the first place. A breach of a conditional sentence order allegation may send you to jail. Either one of these can have significant ramifications both in the present and in the future. As a seasoned criminal defence lawyer, I can help you minimize these detrimental effects, by working to lessen the impacts of these allegations or charges. Alternatively, I can help you long before you are even at risk, by negotiating with the crown or police at the outset to have your restrictions loosened.

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