Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Offender may speak to sentence

726 Before determining the sentence to be imposed, the court shall ask whether the offender, if present, has anything to say.

Marginal note:Relevant information

726.1 In determining the sentence, a court shall consider any relevant information placed before it, including any representations or submissions made by or on behalf of the prosecutor or the offender.

Marginal note:Reasons for sentence

726.2 When imposing a sentence, a court shall state the terms of the sentence imposed, and the reasons for it, and enter those terms and reasons into the record of the proceedings.

Marginal note:Inquiry by court

726.3 When imposing a sentence, a court must inquire of the prosecutor if reasonable steps were taken to determine whether the victim wishes to receive information regarding the sentence and its administration and must, if known, enter the victim’s wishes into the record of the proceedings.

Marginal note:Previous conviction

• 727 (1) Subject to subsections (3) and (4), where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, no greater punishment shall be imposed on the offender by reason thereof unless the prosecutor satisfies the court that the offender, before making a plea, was notified that a greater punishment would be sought by reason thereof.

• Marginal note:Procedure

  (2) Where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, the court shall, on application by the prosecutor and on being satisfied that the offender was notified in accordance with subsection (1), ask whether the offender was previously convicted and, if the offender does not admit to any previous convictions, evidence of previous convictions may be adduced.

• Marginal note:Where hearing ex parte

  (3) Where a summary conviction court holds a trial pursuant to subsection 803(2) and convicts the offender, the court may, whether or not the offender was notified that a greater punishment would be sought by reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the offender and, if any such conviction is proved, may impose a greater punishment by reason thereof.

• Marginal note:Organizations

  (4) If, under section 623, the court proceeds with the trial of an organization that has not appeared and pleaded and convicts the organization, the court may, whether or not the organization was notified that a greater punishment would be sought by reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the organization and, if any such conviction is proved, may impose a greater punishment by reason of that conviction.

• Marginal note:Section does not apply

  (5) This section does not apply to a person referred to in paragraph 745(b).

Marginal note:Sentence justified by any count

728 Where one sentence is passed on a verdict of guilty on two or more counts of an indictment, the sentence is good if any of the counts would have justified the sentence.

Marginal note:Proof of certificate of analyst

• 729 (1) In

  • (a) a prosecution for failure to comply with a condition in a probation order that the accused not have in possession or use drugs, or

  • (b) a hearing to determine whether the offender breached a condition of a conditional sentence order that the offender not have in possession or use drugs,

  a certificate purporting to be signed by an analyst stating that the analyst has analyzed or examined a substance and stating the result of the analysis or examination is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed the certificate.

• Marginal note:Definition of analyst

  (2) In this section, analyst means a person designated as an analyst under the Controlled Drugs and Substances Act or the Cannabis Act.

• Marginal note:Notice of intention to produce certificate

  (3) No certificate shall be admitted in evidence unless the party intending to produce it has, before the trial or hearing, as the case may be, given reasonable notice and a copy of the certificate to the party against whom it is to be produced.

• (4) and (5) [Repealed, 2008, c. 18, s. 36]

• Marginal note:Requiring attendance of analyst

  (6) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for cross-examination.

Marginal note:Proof of certificate of analyst — bodily substance

• 729.1 (1) In a prosecution for failure to comply with a condition in a probation order that the accused not consume drugs, alcohol or any other intoxicating substance, or in a hearing to determine whether the offender breached such a condition of a conditional sentence order, a certificate purporting to be signed by an analyst that states that the analyst has analyzed a sample of a bodily substance and that states the result of the analysis is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person who appears to have signed the certificate.

• Marginal note:Definition of analyst

  (2) In this section, analyst has the same meaning as in section 320.11.

• Marginal note:Notice of intention to produce certificate

  (3) No certificate shall be admitted in evidence unless the party intending to produce it has, before the trial or hearing, as the case may be, given reasonable notice and a copy of the certificate to the party against whom it is to be produced.

• Marginal note:Requiring attendance of analyst

  (4) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for cross-examination.

Absolute and Conditional Discharges

Marginal note:Conditional and absolute discharge

• 730 (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

• Marginal note:Period for which appearance notice, etc., continues in force

  (2) Subject to Part XVI, if an accused who has not been taken into custody or who has been released from custody under any provision of that Part pleads guilty to or is found guilty of an offence but is not convicted, the appearance notice, summons, undertaking or release order issued to, given or entered into by the accused continues in force, subject to its terms, until a disposition in respect of the accused is made under subsection (1) unless, at the time the accused pleads guilty or is found guilty, the court, judge or justice orders that the accused be taken into custody pending such a disposition.

• Marginal note:Effect of discharge

  (3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that

  • (a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;

  • (b) the Attorney General and, in the case of summary conviction proceedings, the informant or the informant’s agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and

  • (c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

• Marginal note:Where person bound by probation order convicted of offence

  (4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.

Probation

Marginal note: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; or

  • (b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.

• Marginal note:Idem

  (2) A court may also make a probation order where it discharges an accused under subsection 730(1).

• (3.1) [Repealed, 1997, c. 17, s. 1]

Marginal note:Firearm, etc., prohibitions

• 731.1 (1) Before making a probation order, the court shall consider whether section 109 or 110 is applicable.

• Marginal note:Application of section 109 or 110

  (2) For greater certainty, a condition of a probation order referred to in paragraph 732.1(3)(d) does not affect the operation of section 109 or 110.

Marginal note:Intermittent sentence

• 732 (1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

  • (a) that the sentence be served intermittently at such times as are specified in the order; and

  • (b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence.

• Marginal note:Application to vary intermittent sentence

  (2) An offender who is ordered to serve a sentence of imprisonment intermittently may, on giving notice to the prosecutor, apply to the court that imposed the sentence to allow it to be served on consecutive days.

• Marginal note:Court may vary intermittent sentence if subsequent offence

  (3) Where a court imposes a sentence of imprisonment on a person who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the court otherwise orders.

Marginal note:Definitions

• 732.1 (1) In this section and section 732.2,

  change

  change, in relation to optional conditions, includes deletions and additions; (modification)

  optional conditions

  optional conditions means the conditions referred to in subsection (3) or (3.1). (conditions facultatives)

• Marginal note:Compulsory conditions of probation order

  (2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following:

  • (a) keep the peace and be of good behaviour;

  • (a.1) [Repealed, 2019, c. 25, s. 297]

  • (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.

• (2.1) [Repealed, 2019, c. 25, s. 297]

• (2.2) [Repealed, 2019, c. 25, s. 297]

• Marginal note:Optional conditions of probation order

  (3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:

  • (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;

  • (a.1) abstain from communicating, directly or indirectly, with any victim, witness or other person identified in the order or from going to any place or geographic area specified in the order, except in accordance with any specified conditions that the court considers necessary;

  • (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 the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance;

  • (c.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under subsection (9) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the offender has breached a condition of the order that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance;

  • (c.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by a probation officer in a notice in Form 51 served on the offender, if a condition of the order requires the offender to abstain from the consumption of drugs, alcohol or any other intoxicating substance;

  • (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.

• Marginal note:Optional conditions — organization

  (3.1) The court may prescribe, as additional conditions of a probation order made in respect of an organization, that the offender do one or more of the following:

  • (a) make restitution to a person for any loss or damage that they suffered as a result of the offence;

  • (b) establish policies, standards and procedures to reduce the likelihood of the organization committing a subsequent offence;

  • (c) communicate those policies, standards and procedures to its representatives;

  • (d) report to the court on the implementation of those policies, standards and procedures;

  • (e) identify the senior officer who is responsible for compliance with those policies, standards and procedures;

  • (f) provide, in the manner specified by the court, the following information to the public, namely,

    • (i) the offence of which the organization was convicted,

    • (ii) the sentence imposed by the court, and

    • (iii) any measures that the organization is taking — including any policies, standards and procedures established under paragraph (b) — to reduce the likelihood of it committing a subsequent offence; and

  • (g) comply with any other reasonable conditions that the court considers desirable to prevent the organization from committing subsequent offences or to remedy the harm caused by the offence.

• Marginal note:Consideration — organizations

  (3.2) Before making an order under paragraph (3.1)(b), a court shall consider whether it would be more appropriate for another regulatory body to supervise the development or implementation of the policies, standards and procedures referred to in that paragraph.

• Marginal note:Form and period of order

  (4) A probation order may be in Form 46, and the court that makes the probation order shall specify therein the period for which it is to remain in force.

• Marginal note:Obligations of court

  (5) The court that makes a probation order shall

  • (a) cause a copy of the order to be given to the offender and, on request, to the victim;

  • (b) explain the conditions of the order set under subsections (2) to (3.1) and the substance of section 733.1 to the offender;

  • (c) cause an explanation to be given to the offender of the procedure for applying under subsection 732.2(3) for a change to the optional conditions and of the substance of subsections 732.2(3) and (5); and

  • (d) take reasonable measures to ensure that the offender understands the order and the explanations.

• Marginal note:For greater certainty

  (6) For greater certainty, a failure to comply with subsection (5) does not affect the validity of the probation order.

• Marginal note:Notice — samples at regular intervals

  (7) The notice referred to in paragraph (3)(c.2) must specify the places and times at which and the days on which the offender must provide samples of a bodily substance under a condition described in that paragraph. The first sample may not be taken earlier than 24 hours after the offender is served with the notice, and subsequent samples must be taken at regular intervals of at least seven days.

• Marginal note:Designations and specifications

  (8) For the purposes of paragraphs (3)(c.1) and (c.2) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory shall, with respect to the province or territory,

  • (a) designate the persons or classes of persons that may take samples of bodily substances;

  • (b) designate the places or classes of places at which the samples are to be taken;

  • (c) specify the manner in which the samples are to be taken;

  • (d) specify the manner in which the samples are to be analyzed;

  • (e) specify the manner in which the samples are to be stored, handled and destroyed;

  • (f) specify the manner in which the records of the results of the analysis of the samples are to be protected and destroyed;

  • (g) designate the persons or classes of persons that may destroy the samples; and

  • (h) designate the persons or classes of persons that may destroy the records of the results of the analysis of the samples.

• Marginal note:Further designations

  (9) For the purpose of paragraph (3)(c.1) and subject to the regulations, the Attorney General of a province or the minister of justice of a territory may, with respect to the province or territory, designate persons or classes of persons to make a demand for a sample of a bodily substance.

• Marginal note:Restriction

  (10) Samples of bodily substances referred to in paragraphs (3)(c.1) and (c.2) may not be taken, analyzed, stored, handled or destroyed, and the records of the results of the analysis of the samples may not be protected or destroyed, except in accordance with the designations and specifications made under subsection (8).

• Marginal note:Destruction of samples

  (11) The Attorney General of a province or the minister of justice of a territory, or a person authorized by the Attorney General or minister, shall cause all samples of bodily substances provided under a probation order to be destroyed within the periods prescribed by regulation unless the samples are reasonably expected to be used as evidence in a proceeding for an offence under section 733.1.

• Marginal note:Regulations

  (12) The Governor in Council may make regulations

  • (a) prescribing bodily substances for the purposes of paragraphs (3)(c.1) and (c.2);

  • (b) respecting the designations and specifications referred to in subsections (8) and (9);

  • (c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (11); and

  • (d) respecting any other matters relating to the samples of bodily substances.