Canadian Criminal Sentencing/Available Sentences/Conditional Sentences

Introduction.
A conditional sentence is a sentence of incarceration which is permitted to be served in the community under strict conditions, typically consisting of house arrest, for up to two years less a day. 
The enabling provision states: 
A Conditional Sentence Order (CSO) is a form of incarceration.
The purpose of the conditional sentence is to reduce the reliance on incarceration as a sanction and increase restorative justice objectives.
A CSO is not the same as probation. The former being punitive and rehabilitative while latter being only for rehabilitation.
CSOs are usually better at achieving "the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community". 
Exempt Offences.
Offences enumerated under s. 741.2 that are entirely exempt from CSOs include:
Eligibility.
The requirements for a conditional sentence are summarized as follows: (R v Proulx, 2000 SCC 5 at para. 46)
A conditional sentence, being a period of incarceration, can satisfy the principles of denunciation and deterrence. However, there is a comparative leniency in a conditional sentence when compared “to a jail term of equivalent duration.”
A conditional sentence can be available to a person who is on parole.
There is no presumption for or against CSOs. However, it is considered "likely more appropriate" where a "combination of both punitive and restorative objectives" are to be achieved.
Mandatory Minimums.
Mandatory minimum offences are not eligible for a conditional sentence. The offences with minimums are identifiable by the presence of the minimum within the definition of the offence.
See more: Canadian Criminal Sentencing/Available Sentences/Maximum and Minimum Sentences
Safety of Community.
The sentencing judge should undertake a "risk assessment" to determine if the offender is a risk to the safety to the community.
Assessing risk to the community is divided into two dimensions: 1) the risk of re-offence and 2) the gravity of the danger in the event of a re-offence.
Risk of re-offence should be considered in light of potential "conditions attached to the sentence". Where there is a risk to the community, the risk may be minimized by imposing "appropriate conditions in the sentence." Thus, a risk is acceptable as long as it is containable within the sentence.
Previous non-compliance with court orders is a "weighty factor" against the availability of a conditional sentence. They can be evidence that the offender is unlikely to comply and the sentence will not likely have a deterrent or rehabilitative effect.
Procedure.
Imposing Conditions.
It is generally expected that the terms of a CSO will include a restriction on liberty such as house arrest.
Additional conditions requiring the offender to undergo treatment and then return to the court for a progress report has been found to be invalid as the court is functus officio and has no jurisdiction over the matter.
Conditional Sentence Breaches.
Conditional sentence breaches are governed by s. 742.6, which states:
An allegation of breach is not a charged offence within the meaning of s. 11 of the Charter. Consequently, the reverse onus does not violate s. 11(d) and does not amount to double jeopardy. Nor generally speaking is it a substantive criminal offence. 
An allegation of a breach of a conditional sentence stops the running of the conditional sentence. A breach is not necessarily an independent offence, but rather is simply a claim to reconsider the terms of the conditional sentence under s. 742.6.
A breach hearing must commence within 30 days of the allegation.
Once a breach allegation is made, it should only be the judge who granted the initial conditional sentence can grant bail before the hearing. It breach hearing itself is also usually heard in front of the same judge.
Hearing.
To establish a breach, the crown must establish on a balance of probabilities that the offender breached the sentence.
Unless the accused proves on balance of probabilities that there was a reasonable excuse. (s. 742.6(9))
Report&lt;br&gt;
The breach must be supported by a signed report of the supervisor, and where appropriate signed statements of the witnesses. (s.742.6(4))
The report is admissible if the offender is given reasonable notice of the intention to produce the document as well as the Report itself. (s. 742.6(5))
This does not preclude the crown from calling oral evidence.
The accused may seek leave of the court to cross examine the supervisor or any other witness who signed a statement in the report. (742.6(8)) However, the accused must establish that cross-examination serves a useful purpose.
Disposition on Breach.
If a breach is found, the presumption is for the offender to spend the remainder of the sentence in jail. However, the disposition should turn on the particular circumstances. It is the constant threat of encarceration that should compel compliance.
A conditional sentence is suspended where the accused is ordered to serve another sentence in jail. (s. 742.7)
A judge cannot give an intermittent sentence for a breach of a conditional sentence order.
Sentence Variations.
The Sentence Supervisor can recommend changes in the optional conditions of the Order where there is a change in circumstances. Notice of the proposed change must be provided to the court and counsel. It is generally understood that the changes should not be of a substantial nature that may change the purpose of the initial order. The application should not be initiated by the offender.
A change of address cannot be done merely be calling and leaving a voicemail message on the supervisors machine.
There is no mechanism within the Code to permit a CSO to be transferred to a jurisdiction outside of Canada.
Prior to November 20, 2012.
The previous version of s. 742.1 stated:
Serious Personal Injury Offences.
On December 1, 2007, the Criminal Code was amended to exempt all "serious personal injury offences", as defined in s. 752, from consideration for Conditional Sentences prior to November 20, 2012:
This has been found to exclude most robberies.
See more at Canadian Criminal Sentencing/Long-term_and_Dangerous_Offender_Designation#Serious Personal Injury Offences
History.
On November 20, 2012, s. 742.1 was amended to eliminate a number of types of offences that are eligible for CSOs. Also, there is no longer any consideration of whether an offence is a "serious personal injury" offence. (see &lt;http://laws-lois.justice.gc.ca/eng/AnnualStatutes/2012_1/FullText.html&gt;) These amendments only apply to offences that occur after the amendments.