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Offenders and Accused Persons

Conditional Sentence of Imprisonment

Prior to 1996, a person found guilty of a criminal offence and sentenced to less than two years of imprisonment had to serve the sentence in a prison. The imprisoned person had to interrupt his regular activities (work, studies, etc.) and was no longer able to assume his family, professional or social responsibilities. Today, a person sentenced to prison for less than two years can serve the sentence within the community if the court considers a conditional sentence of imprisonment to be appropriate.

In this Infosheet, Éducaloi describes a conditional sentence and when it may be imposed.

What is a conditional sentence of imprisonment?

The court can order an offender convicted of a criminal offence and sentenced to less than two years in prison to serve the sentence within the community.

This means that the offender remains free as long as he complies with the conditions imposed by the court.

In what circumstances can a conditional sentence of imprisonment be imposed?

A conditional sentence of imprisonment can be imposed when the following conditions are met:

• The person is found guilty of an offence for which there is no minimum sentence of imprisonment.
  
• The person is found guilty of an offence for which the law does not prohibit a conditional sentence of imprisonment. (See the question: “Can a conditional sentence of imprisonment apply to all criminal offences?”)
  
• The person is sentenced to a prison term of less than two years.
  
• The court finds that it would not be a danger to society for the guilty person to serve his sentence within the community.
  
• The court is convinced that a conditional sentence of imprisonment is an appropriate sentence which respects the objectives and principles of sentencing.

Regarding the third criteria mentioned above, the judge must not consider time spent in custody before the sentence when calculating whether it is a prison term of less than two years. (Time spent in custody before the sentence is, generally, multiplied by two and subtracted from the sentence).

For more information about the objectives and principles of sentencing, read the following Infosheets: Possible sentences in Canada  (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/249/) and Sentencing in Canada  (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/245/).

Can a conditional sentence of imprisonment apply to all criminal offences?

No. A judge cannot give a conditional sentence of imprisonment when the accused is found guilty:

• Of sexual assault.
  
• Of terrorism.
  
• Of having committed an offence for the benefit of a criminal organization.
  
• Of an offence, punishable by at least 10 years in prison, that involves violence, endangering the life or safety of another person or behavior likely to cause another person psychological harm.
  
• Of an offence for which the law sets out a minimum prison sentence. For example, the minimum sentence for murder is imprisonment for life.

For example, a person found guilty of theft or fraud of less than $5000, of mischief, or of keeping a common bawdy house may be condemned to serve a conditional sentence of imprisonment. However, a conditional sentence of imprisonment may not be imposed on a person found guilty of incest, aggravated assault or impaired driving causing death.

Is a person serving a sentence within the community free to act as he wishes?

Not entirely. A person serving a conditional sentence of imprisonment is not free even if he is not confined within cell walls. He must comply with the conditions set out or he will be taken into custody. Some of these conditions are mandatory, meaning the judge will always include them in the conditional order. However, the judge can add other conditions depending on the circumstances of the case.

Some of the mandatory conditions are, in particular: to keep the peace, to exhibit good behaviour, to appear before the court when required, and to report to a correctional services supervisor.

For example, the offender may be required to meet with the supervisor once a week at the courthouse. The supervisor is responsible for ensuring that the offender complies with all the conditions in the conditional prison sentence.

The court must also limit the offender’s movements by requiring the offender to obtain written permission from the court or the supervisor if he wants to leave the jurisdiction. In addition, a person serving a conditional sentence must inform the supervisor of any change of address or employment.

Can the court impose other conditions?

Yes. The court can impose any and all reasonable conditions it feels are necessary to ensure that the offender behaves properly and does not commit the same or other offences.

One of these conditions is house arrest. The courts have ruled that a person serving a conditional sentence must, in theory, be detained in their house for the duration of the sentence. The court will generally order the offender to remain at his domicile, or at another pre-determined place ordered by the court, such as a drug rehabilitation centre, 24 hours a day. This type of condition is commonly called house arrest. Most of the time, however, the court will allow the person to leave for food, school, work, or to participate in other authorized activities (for example, studies, drug treatment program, community service, religious services, emergencies, etc.).

In other cases, the judge will order the offender to be at home only at a specific time of the day, for example between 9pm and 7am. This type of condition is commonly called a curfew. The judge may decide to impose house arrest for part of the sentence, and a curfew for the other part.

In addition, the court can prohibit the offender from communicating with one or several people: for example, the victim, members of the victim’s family, or even accomplices. He can also order the offender to refrain from approaching the residence or workplace of one or several people.

The judge can also prohibit the offender from being in an establishment that serves alcohol, from possessing a cell phone or a pager, etc.

Lastly, the judge can order the offender sentenced to a conditional sentence to enter a treatment program or perform a certain number of hours of community service, where appropriate.

The judge often imposes some or all of these conditions as a rule, rather than as an exception. This is because judges want to increase the punitive aspect of a conditional prison sentence by imposing more limitations on the offender’s freedom.

How do we ensure that the offender is complying with the conditions imposed by the court?

Supervisors are responsible for ensuring that the offender complies with the conditions of the conditional sentence. They have several means available to them for this purpose.

For example, the supervisor can require the offender to report to his office once a week or several times per month. He can also demand that the offender provide written proof that he is participating in court-ordered therapy or community service.

Supervisors can also telephone or show up at the offender’s home any time to verify that he is complying with the house arrest or other conditions of the conditional sentence.

Naturally, the supervisor, victim, police or any citizen who notices that the conditions are not being complied with can report the offender.

Other than these measures to supervise the offender, the conditional sentencing regime provides that the offender must meet with a designated official. This official accompanies and helps the offender reintegrate into the community. During the first 3 months, the offender must meet with the official twice a month. Then, the official evaluates the offender’s progress and can reduce these meetings to once a month. 1 out of every 3 meetings takes place where the offender lives.

What happens if the offender fails to comply with the court-ordered conditions?

A supervisor who learns that the offender is not abiding by the conditions can notify the Crown prosecutor. The offender can then be arrested and brought or summoned before the court.

The supervisor then presents a written report to the judge describing the violation. If necessary, proof of the violation is made to the judge. A hearing similar to a trial will be held if the offender contests the alleged violation. The Crown will try to prove that the offender failed to comply with the court-ordered conditions. The offender is naturally given a turn to explain his version of the facts to the judge. The conditional order will continue to apply as before if the judge is not satisfied that there was a breach.

However, if the judge is satisfied that the offender violated a condition without a reasonable excuse, he may decide to:

• Do nothing;
  
• Vary the conditions that are not mandatory (the mandatory conditions are described above);
  
• Suspend (interrupt) the conditional sentence and order the offender to serve part of her sentence in prison. The conditional sentence will begin again when the person is freed from prison. For example, Madeleine was convicted to a conditional sentence of imprisonment of 18 months. After 2 months, she violates one of the court-ordered conditions. The court orders her to purge 6 months of her sentence in prison. The court also orders her to be subject again to a conditional sentence upon her release from prison;
  
• Terminate the conditional sentence and order that the offender be imprisoned until the end of the sentence.

For example, Nicholas was sentenced to a 23-month conditional sentence of imprisonment. Eleven months into the sentence, he had violated three of the conditions. The court decided to end the conditional sentence and ordered Nicholas to serve the remaining 12 months of his sentence in prison.

Is there any difference between a “probation order” and a “conditional sentence of imprisonment”?

Yes. A probation order and a conditional sentence of imprisonment are different things. They have in common that they are both orders made by the judge setting out mandatory conditions with which the offender must comply.

• A Probation order is for the judge to impose conditions that add on to the sentence as such. Except if it is a prison sentence, these conditions apply as soon as the sentence is handed down. For a prison sentence, the conditions begin to apply when the offender gets out of jail. For example, once the offender gets out of jail, he is obliged to be home every night by 8:00 o’clock at the latest.
  
  
• A conditional sentence of imprisonment is the sentence itself. It is like serving a prison sentence except it must be served in the community. This sentence has conditions attached to it which must be complied with.

Quite often, the judge imposes a conditional sentence of imprisonment, followed by a probation order. For example: Peter is given a 6-month conditional sentence, followed by an 18-month probation period. During the conditional sentence, Peter stays under house arrest. Peter spends all of the first 6 months at home. At the end of the conditional sentence, when probation begins, Peter stays home every night for 1 year and a half, but is free to leave during the day.

The main difference between probation and a conditional sentence of imprisonment lies in the consequences of not respecting the conditions imposed by the judge.

For the conditional sentence, if the judge concludes that the offender has not respected the order, he can put the person in prison or change the order that he made. Also, the conditional sentence often has stricter conditions than probation. Failing to respect one of the conditions of a conditional sentence of imprisonment is not a criminal offence on its own.

On the other hand, it is a criminal offence for a person not to respect the conditions of a probation order without a reasonable excuse. The Crown prosecutor can charge that person with a breach of probation. The penalty for this offence is usually just a fine.

To learn more about probation orders, consult our Infosheet Possible sentences in Canada  (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/249/).

Does a conditional sentence of imprisonment replace parole?

No. Parole applies where a person was sentenced to serve time in a prison or a penitentiary. After having served part of his sentence in custody, i.e. within the walls of the prison or penitentiary, the offender may be allowed to serve the remainder of his sentence in the community under certain conditions. He would then be granted what is called “parole”.

An inmate generally becomes eligible for parole after serving one-third of his sentence.

It is not up to the sentencing court to decide whether or not parole should be granted. It is the National Parole Board (for offenders held in penitentiaries) or the Commission québécoise des libérations conditionnelles (for offenders held in prison) that decides whether or not to grant parole. Parole is a privilege. The Board or the Commission can grant or deny a request for parole. To learn more about parole, consult the Infosheet entitled Conditional release  (http://www.educaloi.qc.ca/en/loi/offenders_and_accused_persons/250/).

A person sentenced to a conditional sentence of imprisonment cannot apply for parole and must serve the entire sentence, from the first to the last day.