Under section 733.1(1) of the Criminal Code, it is a criminal offence to breach any condition of a Probation Order (also known as Failing to Comply with a Probation Order). While the charge may seem minor, a conviction for breaching probation still has significant consequences. A breach of probation signals to a Court that an accused cannot follow court orders and, if future charges arise, may increase the difficulty of obtaining bail.

What is Probation?

Probation is a court order made by a judge as part of a sentence. A Probation Order is often made where an accused person has pled guilty or been found guilty after trial and has been sentenced to one of the following dispositions:

• A fine;
• A conditional discharge (mandatory);
• A suspended sentence (mandatory);
• A Conditional Sentence Order;
• An intermittent sentence (mandatory);
• A term of imprisonment not exceeding two years; and
• A period of incarceration.

What Conditions Can Be on a Probation Order?

There are many different conditions a court can order as part of a Probation Order, including:

• Keep the peace and be of good behaviour;
• No weapons as defined under the Criminal Code;
• No contact with certain individuals;
• Do not attend at certain addresses.
• To report to a Probation Officer at certain times;
• To notify your Probation Order of any change of address, phone number, employment, etc.
• To remain gainfully employed;
• To attend counselling as directed by your Probation Officer; and
• To participate in a specific program

This list is an example of common conditions on a Probation Order. However, depending on the circumstances of your case, there may be numerous other conditions that the Crown, Defence, or Court may request.

Can Exceptions to a Condition of a Probation Order be Ordered?

It is possible to request an exception to a condition of your Probation Order. For example, the Crown may agree to an exception to a no-contact condition where the individual (often a complainant) would like contact, and also provides their written revocable consent.

How long does Probation Last?

A Probation Order is commonly ordered for a period of 12 months, but it can be longer. A Probation Order cannot last more than three years and cannot run consecutive to another order. It is possible to apply to vary or terminate your Probation Order before it expires.

What is a Breach of Probation?

A person commits the offence of breach of probation where they fail to comply with any aspect or condition of their Probation Order without reasonable excuse.

Possible Penalties for Breach of Probation

Failure to Comply with a Probation Order is a hybrid offence, meaning the Crown can elect to proceed by summary conviction or by indictment.

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.

• If the Crown proceeds by indictment: a maximum punishment of four years imprisonment.

Possible Defences to a Charge of Breach of Probation

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes defences that may be available in a Breach of Probation case:

• Factual Innocence: Failure of the Crown to prove every essential element of the specific offence beyond a reasonable doubt.

• Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
  • the right against unreasonable search and seizure;
  • the right to not be arbitrarily detained;
  • the right to be informed promptly of the reasons for arrest;
  • the right to retain and instruct counsel without delay; and
  • the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings or evidence from your case being excluded.

Next Steps

The information above provides a general overview of Probation and the offence of Breach of Probation, as well as potential penalties and defences. However, no two cases are alike. Every criminal case is fact-specific and ranges in complexity, depending on the issues at play.

Were you charged with Breach of Probation? Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach that is tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.