Canadian Criminal Sentencing/Available Sentences/Suspended Sentences and Probation
“[P]robation is regarded as a rehabilitative sentencing tool...It is not considered punitive in nature.” 
- R. v. Rawn, 2012 ONCA 487 at para 35
Terms of ProbationEdit
Compulsory terms of probation are listed at s. 732.1 (2):
a) keep the peace and be of good behaviour;
a.1) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order, or refrain from going to any place specified in the order, except in accordance with the conditions specified in the order that the court considers necessary, unless
(i) the victim, witness or other person gives their consent or, if the victim, witness or other person is a minor, the parent or guardian, or any other person who has the lawful care or charge of them, gives their consent, or
(ii) the court decides that, because of exceptional circumstances, it is not appropriate to impose the condition;
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 terms of probation are listed at s. 732.1 (3):
- (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.
These goals concern the future behaviour of the offender, and are not shaped by the seriousness of the offence or degree of culpability.
In order to impose optional terms, it must be established that the conditions are reasonable desirable for "protecting society and facilitating the offender's successful reintegration into the community".
The conditions do not require a connection between the offence and the offender's past history.
A court cannot order the offender as part of probation to submit to "a search and seizure of bodily substances". Moreover, the court cannot "predetermine that any positive reading would constitute a breach of probation".
The judge may impose a requirement to complete up to 250 hours of community service under s.732.1(3)(f) and (h). It must be completed within 1 year.
Sexual Behaviour Assessment
Certain jurisdictions have services through the local hospital that include sexual behaviour assessment. This typically includes phallometric testing. The assessment is intended to assist with risk assessment, determine whether there should be a s.161 order, and what treatment if any can be required.
The assessment will either be included as part of a probationary order or else as part of an order for a pre-sentence report prior to sentencing.
- R. v. Kootenay 2000 ABCA 289, (2000), 271 A.R. 156, 2000 ABCA 289 at paras. 13-14
- R v Taylor at p. 394
R. v. Kootenay, 2000 ABCA 289
R. v. Taylor 1997 CanLII 9813 (SK CA), (1997), 122 C.C.C. (3d) 376 at 394 (Sask. C.A.)
- R. v. Coombs, 2004 ABQB 621, 369 A.R. 215 at para. 35 (Q.B.)
- Kootenay, supra, at para. 14
R. v. Coombs, 2004 ABQB 621 at para. 39
R. v. Vena, 2005 ABQB 948 at 9
R. v. Coombs, supra at para. 39
R. v. P.A.G.,  O.J. No. 5837 (Ct. J.)
R. v. Forrest (1992), 20 B.C.A.C. 293 (C.A.)
R. v. McLeod,  Y.J. No. 96 (Sup. Ct.)
R v. Okeymow, 2012 ABQB 257
- R. v. Shoker, 2006 SCC 44 (CanLII),  2 SCR 399 upholding R. v. Shoker, 2004 BCCA 643 (CanLII)
See R. v. Challes, 2008 CanLII 13360 (ONSC)- pre-sentence assessement
R. v. Gibbons, 2009 NUCJ 30
When Probation can be OrderedEdit
A period of probation cannot be greater than three years.
Probation can be attached to any jail sentence equal or less than 2 years. The length of sentence is considered going forward from the date of sentence and not the global sentence before subtracting remand credit.
Probation should not be imposed where it is impractical to make use of probation.
Suspending of SentenceEdit
Under s. 731(1)(a), court may order that the sentence be suspended and the offender be placed on a period of probation:
Making of probation order
731. (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,
- (a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order;...
R.S., 1985, c. C-46, s. 731; 1992, c. 1, s. 58, c. 20, s. 200; 1995, c. 22, s. 6; 1997, c. 17, s. 1.