INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the penalties that can be imposed if an offender breaches a condition of their conditional sentence order.
SECTION WORDING
742.6(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.
EXPLANATION
Section 742.6(9) of the Criminal Code of Canada refers to the powers of a court in dealing with a breach of a conditional sentence. A conditional sentence is a type of sentence that may be imposed on a person who has been convicted of an offence, but is not considered a danger to society and would not warrant a term of imprisonment. The conditional sentence provides for the person to serve their sentence in the community, subject to certain conditions determined by the court. If the court finds that the person has breached any of the conditions of their conditional sentence, it may take one of four actions. Firstly, it may choose to take no action, depending on the circumstances of the breach. Secondly, it may decide to change the optional conditions of the conditional sentence, so as to better monitor the person's behaviour and reduce the risk of future breaches. Thirdly, it may suspend the conditional sentence and order that the person serve a portion of their remaining sentence in custody, as a consequence of the breach. Finally, it may terminate the conditional sentence and send the person to jail to serve out the remainder of their sentence. The decision as to which action to take will be based on the facts of the case and the nature of the breach. The court will need to be satisfied on a balance of probabilities that the person has breached the conditions of their sentence without reasonable excuse. The onus is on the person to provide proof that they had a reasonable excuse for the breach. In any case, the breach of a conditional sentence is a serious matter and may result in the imposition of a much harsher penalty than the original sentence. Therefore, it is essential that anyone serving a conditional sentence comply fully with all of the conditions imposed upon them.
COMMENTARY
Section 742.6(9) of the Criminal Code of Canada outlines the possible actions that a court can take when an offender breaches a condition of their conditional sentence order. The purpose of this section is to allow the court to address any non-compliance in a way that balances the need for public safety with the principles of rehabilitation and reintegration. The first option available to the court is to take no action. This may occur if the breach was minor or if the court determines that taking action would not be in the best interest of the offender or the community. This approach can be used if the offender has a reasonable excuse for the breach or if the breach was not significant enough to warrant further action. The second option available to the court is to change the optional conditions of the conditional sentence order. This may be appropriate if the breach was related to a specific condition, such as a requirement to attend counseling or therapy, and the court believes that a change in the condition would better address the underlying issue. The third option available to the court is to suspend the conditional sentence order and direct the offender to serve a portion of their sentence in custody. This approach provides a graduated response to non-compliance and allows the offender to return to the community once they have served their time in custody. The court can also impose changes to the optional conditions of the sentence order during this time, which can help to address any underlying issues that led to the breach. The fourth and final option available to the court is to terminate the conditional sentence order and commit the offender to custody until the expiration of their sentence. This is a serious decision and is only used in cases where the court deems the breach to be severe and where the offender poses a significant risk to the community. This option is typically reserved for cases where the offender has shown a pattern of non-compliance or where the breach involves a serious criminal offense. Overall, Section 742.6(9) of the Criminal Code of Canada provides the court with a range of options for addressing non-compliance with a conditional sentence order. This allows the court to be responsive to the specific needs of the offender and the community while balancing public safety with rehabilitation and reintegration. It is a critical tool in the criminal justice system and serves to enhance the fairness and effectiveness of the conditional sentence regime.
STRATEGY
Section 742.6(9) of the Criminal Code of Canada deals with the consequences of breaching a condition of a conditional sentence order. Conditional sentence orders are served in the community instead of in custody, and offenders are subject to a range of conditions laid down by the courts. A breach of any of these conditions can have serious consequences, including the suspension of the conditional sentence order, serving the remainder of the sentence in custody, or the termination of the order and committal to custody for the duration of the sentence. There are several strategic considerations that an offender and their lawyer should bear in mind when dealing with this section of the Criminal Code of Canada. The first and most important consideration is to prevent the breach of the conditions in the first place. Offenders should be aware of all the conditions of their sentence and should make every effort to comply with them. This may require making changes to their lifestyle, such as avoiding contact with certain people or places or checking in with a probation officer regularly, to ensure that the conditions are not breached. It is important that the offender and their lawyer are proactive in identifying any potential barriers to compliance and addressing them early on. If a breach does occur, the offender and their lawyer must act quickly to address the situation. It is essential to gather all the relevant facts, both those in favor of the offender and those against them. This may include speaking with witnesses, obtaining documents, and conducting a thorough review of the offender's progress under the conditional sentence order up to that point. Once all the facts are available, the offender's lawyer should work to negotiate with the Crown on a resolution that is favorable to the offender. This may involve proposing alternative conditions that are better suited to the offender's needs or proposing a modified sentence that would allow the offender to continue serving their sentence in the community. In some cases, it may be appropriate to argue that the breach was minor and should not warrant any further punishment. In cases where the Crown is seeking to revoke the conditional sentence order entirely, the offender's lawyer must be prepared to argue vigorously against this outcome. This may involve presenting evidence of the offender's progress under the order, rehabilitation efforts, and the impact that returning to custody would have on the offender and their family. The offender's lawyer may also need to argue that the breach was not serious enough to warrant revocation and that the offender can be safely managed in the community going forward. Overall, dealing with Section 742.6(9) of the Criminal Code of Canada requires careful planning, preparation, and quick action when a breach occurs. By working proactively to prevent breaches and promptly addressing any that do occur, offenders and their lawyers can minimize the risk of more severe consequences and protect the offender's rights and interests. Strategic communication with the Crown and a thorough understanding of the law and the facts of the case will be vital in achieving a positive outcome.