What Is Probation
Probation is a period of community supervision imposed as part of a criminal sentence. Under section 731 of the Criminal Code, a court can order probation in three situations: when it suspends the passing of sentence (a suspended sentence), when it imposes a conditional discharge, or in addition to a fine or a term of imprisonment of two years less a day or less. Probation cannot follow a federal penitentiary sentence of two years or more.
A probation order can last up to three years. It sets out conditions the offender must follow while living in the community. Failure to comply is itself a criminal offence.
Mandatory Conditions
Every probation order includes three mandatory conditions under section 732.1(2):
- Keep the peace and be of good behaviour.
- Appear before the court when required to do so.
- Notify the court or probation officer in advance of any change of name or address, and promptly notify of any change of employment or occupation.
These conditions are automatic and cannot be removed or modified by the sentencing judge. They apply to every probation order regardless of the nature of the offence.
Optional Conditions
In addition to the mandatory conditions, the sentencing judge can impose optional conditions under section 732.1(3). These are tailored to the circumstances of the offence and the offender. Common optional conditions include:
| Condition | Typical circumstances |
|---|---|
| Report to a probation officer | Standard in most orders; frequency set by the officer (weekly, monthly, etc.) |
| Community service | Up to 240 hours; common for less serious offences and first-time offenders |
| Counselling or treatment | Anger management, substance abuse, domestic violence programming |
| No-contact order | Domestic assault, sexual offences, threats — no direct or indirect contact with the complainant |
| Curfew | Remain at residence between specified hours (e.g., 10 p.m. to 6 a.m.) |
| Area restriction | Prohibition from attending specific locations (complainant’s home, school, workplace) |
| Abstain from alcohol or drugs | DUI offences, drug offences, or any case where substance use contributed to the offending |
| Weapons prohibition | Violent offences, firearms offences — in addition to any stand-alone weapons prohibition order |
| Restitution | Fraud, theft, mischief — payment to the victim for financial losses |
The court can also impose any condition it considers “reasonable for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences” under section 732.1(3)(h). This catch-all provision gives judges broad discretion.
Breach of Probation
Failing to comply with a probation condition without reasonable excuse is a criminal offence under section 733.1 of the Criminal Code. It is a hybrid offence:
- Indictable: maximum 4 years imprisonment.
- Summary conviction: maximum 2 years less a day.
A conviction for breach of probation results in a separate criminal record, in addition to the original offence. The Crown must prove two things: that the accused breached a condition of the probation order, and that the breach was without reasonable excuse. The accused bears no burden — it is the Crown’s obligation to disprove reasonable excuse beyond a reasonable doubt, once the accused raises the issue.
Common breaches include missing reporting appointments, violating no-contact orders, failing to complete community service hours, breaking curfew, and consuming alcohol or drugs in violation of an abstinence condition.
How to Vary Probation Conditions
Under section 732.2(3), either the offender or the Crown can apply to the sentencing court to vary the optional conditions of a probation order. The court can:
- Remove conditions that are no longer necessary or appropriate.
- Add new conditions if circumstances have changed.
- Modify existing conditions (e.g., relax a curfew, reduce reporting frequency).
Applications to vary are heard on notice to the other party. The court considers whether the change is in the interests of justice, taking into account the offender’s compliance record, the time remaining on the order, and any changed circumstances. A strong compliance history is the most persuasive factor in a variation application.
Mandatory conditions cannot be varied. Only the optional conditions imposed under section 732.1(3) are subject to variation.
Probation vs. Conditional Sentence
Probation and conditional sentences are often confused, but they are fundamentally different:
| Probation | Conditional sentence | |
|---|---|---|
| Legal nature | Community supervision order | Jail sentence served in the community |
| Counts as imprisonment | No | Yes |
| Maximum duration | 3 years | 2 years less a day |
| House confinement | Not required (curfew possible) | Typically required (house arrest) |
| Consequence of breach | New criminal charge (s.733.1) | May serve remainder in custody (s.742.6) |
| Availability | Broad — most offences | Restricted — not available for many serious offences (s.742.1) |
A conditional sentence is a more restrictive alternative to incarceration. It is available only when the court imposes a sentence of less than two years, the offence is not one excluded by section 742.1, and the court is satisfied that serving the sentence in the community would not endanger the safety of the community. For many serious offences — including those with mandatory minimums and certain violent and sexual offences — a conditional sentence is not available.
Early Termination of Probation
There is no formal early termination mechanism for probation under the Criminal Code. However, an offender can apply under section 732.2(3) to vary the conditions to the point where the remaining obligations are minimal. In practice, if the offender has fully complied with all conditions and completed all required programs, a court may be willing to relax conditions significantly for the remaining period.
The probation order expires automatically at the end of the specified period. Once it expires, all conditions cease to have effect, and there is no further reporting obligation.
The Bottom Line
Probation is a common outcome, but the conditions it imposes are enforceable criminal obligations. Breaching a single condition can result in a new criminal charge with up to 4 years imprisonment. If you are facing sentencing, the specific conditions imposed in your probation order matter enormously — they will govern your daily life for up to three years. And if you are already on probation and struggling to comply, or if you have been charged with a breach, the time to get legal advice is now.