Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Transfer of order

• 742.5 (1) Where an offender who is bound by a conditional sentence order becomes a resident of a territorial division, other than the territorial division where the order was made, on the application of a supervisor, the court that made the order may, subject to subsection (1.1), transfer the order to a court in that other territorial division that would, having regard to the mode of trial of the offender, have had jurisdiction to make the order in that other territorial division if the offender had been tried and convicted there of the offence in respect of which the order was made, and the order may thereafter be dealt with and enforced by the court to which it is so transferred in all respects as if that court had made the order.

• Marginal note:Attorney General’s consent

  (1.1) The transfer may be granted only with

  • (a) the consent of the Attorney General of the province in which the conditional sentence order was made, if the two territorial divisions are not in the same province; or

  • (b) the consent of the Attorney General of Canada, if the proceedings that led to the issuance of the conditional sentence order were instituted by or on behalf of the Attorney General of Canada.

• Marginal note:Where court unable to act

  (2) Where a court that has made a conditional sentence order or to which a conditional sentence order has been transferred pursuant to subsection (1) is for any reason unable to act, the powers of that court in relation to the conditional sentence order may be exercised by any other court that has equivalent jurisdiction in the same province.

Marginal note:Procedure on breach of condition

• 742.6 (1) For the purpose of proceedings under this section,

  • (a) the provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice apply, with any modifications that the circumstances require, and any reference in those Parts to committing an offence shall be read as a reference to breaching a condition of a conditional sentence order;

  • (b) the powers of arrest for breach of a condition are those that apply to an indictable offence, with any modifications that the circumstances require, and subsection 495(2) does not apply;

  • (c) despite paragraph (a), if an allegation of breach of condition is made, the proceeding is commenced by

    • (i) the issuance of a warrant for the arrest of the offender for the alleged breach,

    • (ii) the arrest without warrant of the offender for the alleged breach, or

    • (iii) the compelling of the offender’s appearance in accordance with paragraph (d);

  • (d) if the offender is already detained or before a court, the offender’s appearance may be compelled under the provisions referred to in paragraph (a);

  • (e) if an offender is arrested for the alleged breach, the peace officer who makes the arrest or a judge or justice may release the offender and the offender’s appearance may be compelled under the provisions referred to in paragraph (a); and

  • (f) any judge of a superior court of criminal jurisdiction or of a court of criminal jurisdiction or any justice of the peace may issue a warrant to arrest no matter which court, judge or justice sentenced the offender.

• Marginal note:Warrant — means of telecommunication

  (1.1) A warrant may be issued under paragraph (1)(f) by a means of telecommunication, and the provisions in section 487.1 on the issuance of a warrant apply for those purposes, with any necessary modifications.

• Marginal note:Interim release

  (2) For the purpose of the application of section 515, the release from custody of an offender who is detained on the basis of an alleged breach of a condition of a conditional sentence order shall be governed by subsection 515(6).

• Marginal note:Hearing

  (3) The hearing of an allegation of a breach of condition shall be commenced within thirty days, or as soon thereafter as is practicable, after

  • (a) the offender’s arrest; or

  • (b) the compelling of the offender’s appearance in accordance with paragraph (1)(d).

• Marginal note:Place

  (3.1) The allegation may be heard by any court having jurisdiction to hear that allegation in the place where the breach is alleged to have been committed or the offender is found, arrested or in custody.

• Marginal note:Attorney General’s consent

  (3.2) If the place where the offender is found, arrested or in custody is outside the province in which the breach is alleged to have been committed, no proceedings in respect of that breach shall be instituted in that place without

  • (a) the consent of the Attorney General of the province in which the breach is alleged to have been committed; or

  • (b) the consent of the Attorney General of Canada, if the proceedings that led to the issuance of the conditional sentence order were instituted by or on behalf of the Attorney General of Canada.

• Marginal note:Adjournment

  (3.3) A judge may, at any time during a hearing of an allegation of breach of condition, adjourn the hearing for a reasonable period.

• Marginal note:Report of supervisor

  (4) An allegation of a breach of condition must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses.

• Marginal note:Admission of report on notice of intent

  (5) The report is admissible in evidence if the party intending to produce it has, before the hearing, given the offender reasonable notice and a copy of the report.

• (6) and (7) [Repealed, 2008, c. 18, s. 41]

• Marginal note:Requiring attendance of supervisor or witness

  (8) The offender may, with leave of the court, require the attendance, for cross-examination, of the supervisor or of any witness whose signed statement is included in the report.

• Marginal note:Powers of court

  (9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may

  • (a) take no action;

  • (b) change the optional conditions;

  • (c) suspend the conditional sentence order and direct

    • (i) that the offender serve in custody a portion of the unexpired sentence, and

    • (ii) that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or

  • (d) terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

• Marginal note:Warrant or arrest — suspension of running of conditional sentence order

  (10) The running of a conditional sentence order imposed on an offender is suspended during the period that ends with the determination of whether a breach of condition had occurred and begins with the earliest of

  • (a) the issuance of a warrant for the arrest of the offender for the alleged breach,

  • (b) the arrest without warrant of the offender for the alleged breach, and

  • (c) the compelling of the offender’s appearance in accordance with paragraph (1)(d).

• Marginal note:Conditions continue

  (11) If the offender is not detained in custody during any period referred to in subsection (10), the conditions of the order continue to apply, with any changes made to them under section 742.4, and any subsequent breach of those conditions may be dealt with in accordance with this section.

• Marginal note:Detention under s. 515(6)

  (12) A conditional sentence order referred to in subsection (10) starts running again on the making of an order to detain the offender in custody under subsection 515(6) and, unless section 742.7 applies, continues running while the offender is detained under the order.

• Marginal note:Earned remission does not apply

  (13) Section 6 of the Prisons and Reformatories Act does not apply to the period of detention in custody under subsection 515(6).

• Marginal note:Unreasonable delay in execution

  (14) Despite subsection (10), if there was unreasonable delay in the execution of a warrant, the court may, at any time, order that any period between the issuance and execution of the warrant that it considers appropriate in the interests of justice is deemed to be time served under the conditional sentence order unless the period has been so deemed under subsection (15).

• Marginal note:Allegation dismissed or reasonable excuse

  (15) If the allegation is withdrawn or dismissed or the offender is found to have had a reasonable excuse for the breach, the sum of the following periods is deemed to be time served under the conditional sentence order:

  • (a) any period for which the running of the conditional sentence order was suspended; and

  • (b) if subsection (12) applies, a period equal to one half of the period that the conditional sentence order runs while the offender is detained under an order referred to in that subsection.

• Marginal note:Powers of court

  (16) If a court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may, in exceptional cases and in the interests of justice, order that some or all of the period of suspension referred to in subsection (10) is deemed to be time served under the conditional sentence order.

• Marginal note:Considerations

  (17) In exercising its discretion under subsection (16), a court shall consider

  • (a) the circumstances and seriousness of the breach;

  • (b) whether not making the order would cause the offender undue hardship based on the offender’s individual circumstances; and

  • (c) the period for which the offender was subject to conditions while the running of the conditional sentence order was suspended and whether the offender complied with those conditions during that period.

Marginal note:If person imprisoned for new offence

• 742.7 (1) If an offender who is subject to a conditional sentence order is imprisoned as a result of a sentence imposed for another offence, whenever committed, the running of the conditional sentence order is suspended during the period of imprisonment for that other offence.

• Marginal note:Breach of condition

  (2) If an order is made under paragraph 742.6(9)(c) or (d) to commit an offender to custody, the custodial period ordered shall, unless the court considers that it would not be in the interests of justice, be served consecutively to any other period of imprisonment that the offender is serving when that order is made.

• Marginal note:Multiple sentences

  (3) If an offender is serving both a custodial period referred to in subsection (2) and any other period of imprisonment, the periods shall, for the purpose of section 743.1 and section 139 of the Corrections and Conditional Release Act, be deemed to constitute one sentence of imprisonment.

• Marginal note:Conditional sentence order resumes

  (4) The running of any period of the conditional sentence order that is to be served in the community resumes upon the release of the offender from prison on parole, on statutory release, on earned remission, or at the expiration of the sentence.

Imprisonment

Marginal note:Imprisonment when no other provision

743 Every one who is convicted of an indictable offence for which no punishment is specially provided is liable to imprisonment for a term not exceeding five years.

Marginal note:Imprisonment for life or more than two years

• 743.1 (1) Except where otherwise provided, a person who is sentenced to imprisonment for

  • (a) life,

  • (b) a term of two years or more, or

  • (c) two or more terms of less than two years each that are to be served one after the other and that, in the aggregate, amount to two years or more,

  shall be sentenced to imprisonment in a penitentiary.

• Marginal note:Subsequent term less than two years

  (2) Where a person who is sentenced to imprisonment in a penitentiary is, before the expiration of that sentence, sentenced to imprisonment for a term of less than two years, the person shall serve that term in a penitentiary, but if the previous sentence of imprisonment in a penitentiary is set aside, that person shall serve that term in accordance with subsection (3).

• Marginal note:Imprisonment for term less than two years

  (3) A person who is sentenced to imprisonment and who is not required to be sentenced as provided in subsection (1) or (2) shall, unless a special prison is prescribed by law, be sentenced to imprisonment in a prison or other place of confinement, other than a penitentiary, within the province in which the person is convicted, in which the sentence of imprisonment may be lawfully executed.

• Marginal note:Long-term supervision

  (3.1) Despite subsection (3), an offender who is subject to long-term supervision under Part XXIV and is sentenced for another offence during the period of the supervision shall be sentenced to imprisonment in a penitentiary.

• Marginal note:Sentence to penitentiary of person serving sentence elsewhere

  (4) Where a person is sentenced to imprisonment in a penitentiary while the person is lawfully imprisoned in a place other than a penitentiary, that person shall, except where otherwise provided, be sent immediately to the penitentiary, and shall serve in the penitentiary the unexpired portion of the term of imprisonment that that person was serving when sentenced to the penitentiary as well as the term of imprisonment for which that person was sentenced to the penitentiary.

• Marginal note:Transfer to penitentiary

  (5) Where, at any time, a person who is imprisoned in a prison or place of confinement other than a penitentiary is subject to two or more terms of imprisonment, each of which is for less than two years, that are to be served one after the other, and the aggregate of the unexpired portions of those terms at that time amounts to two years or more, the person shall be transferred to a penitentiary to serve those terms, but if any one or more of such terms is set aside or reduced and the unexpired portions of the remaining term or terms on the day on which that person was transferred under this section amounted to less than two years, that person shall serve that term or terms in accordance with subsection (3).

• Marginal note:Newfoundland

  (6) For the purposes of subsection (3), “penitentiary” does not, until a day to be fixed by order of the Governor in Council, include the facility mentioned in subsection 15(2) of the Corrections and Conditional Release Act.

Marginal note:Report by court to Correctional Service

743.2 A court that sentences or commits a person to penitentiary shall forward to the Correctional Service of Canada its reasons and recommendation relating to the sentence or committal, any relevant reports that were submitted to the court, and any other information relevant to administering the sentence or committal.