Canadian Criminal Sentencing/Available Sentences/Suspended Sentences and Probation

General Principles
“[P]robation is regarded as a rehabilitative sentencing tool...It is not considered punitive in nature.”

Compulsory terms
Compulsory terms of probation are listed at s. 732.1 (2):

Optional terms
Optional terms of probation are listed at s. 732.1 (3):

The primary goal of these conditions is rehabilitation and reintegration. Punishment is not a dominant purpose.

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.

The offender's inability to comply with the condition does not make it unreasonable. However, setting offenders up for future breaches should be of concern.

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".

Community Service 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.

When Probation can be Ordered
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 Sentence
Under s. 731(1)(a), court may order that the sentence be suspended and the offender be placed on a period of probation: