Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Prohibition on use of bodily substance

• 732.11 (1) No person shall use a bodily substance provided under a probation order except for the purpose of determining whether an offender is complying with a condition of the order that they abstain from the consumption of drugs, alcohol or any other intoxicating substance.

• Marginal note:Prohibition on use or disclosure of result

  (2) Subject to subsection (3), no person shall use, disclose or allow the disclosure of the results of the analysis of a bodily substance provided under a probation order.

• Marginal note:Exception

  (3) The results of the analysis of a bodily substance provided under a probation order may be disclosed to the offender to whom they relate, and may also be used or disclosed in the course of an investigation of, or in a proceeding for, an offence under section 733.1 or, if the results are made anonymous, for statistical or other research purposes.

• Marginal note:Offence

  (4) Every person who contravenes subsection (1) or (2) is guilty of an offence punishable on summary conviction.

Marginal note:Coming into force of order

• 732.2 (1) A probation order comes into force

  • (a) on the date on which the order is made;

  • (b) where the offender is sentenced to imprisonment under paragraph 731(1)(b) or was previously sentenced to imprisonment for another offence, as soon as the offender is released from prison or, if released from prison on conditional release, at the expiration of the sentence of imprisonment; or

  • (c) where the offender is under a conditional sentence order, at the expiration of the conditional sentence order.

• Marginal note:Duration of order and limit on term of order

  (2) Subject to subsection (5),

  • (a) where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1, or is imprisoned under paragraph 731(1)(b) in default of payment of a fine, the order continues in force except in so far as the sentence renders it impossible for the offender for the time being to comply with the order; and

  • (b) no probation order shall continue in force for more than three years after the date on which the order came into force.

• Marginal note:Changes to probation order

  (3) A court that makes a probation order may at any time, on application by the offender, the probation officer or the prosecutor, require the offender to appear before it and, after hearing the offender and one or both of the probation officer and the prosecutor,

  • (a) make any changes to the optional conditions that in the opinion of the court are rendered desirable by a change in the circumstances since those conditions were prescribed,

  • (b) relieve the offender, either absolutely or on such terms or for such period as the court deems desirable, of compliance with any optional condition, or

  • (c) decrease the period for which the probation order is to remain in force,

  and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions, inform the offender of its action and give the offender a copy of the order so endorsed.

• Marginal note:Judge may act in chambers

  (4) All the functions of the court under subsection (3) may be exercised in chambers.

• Marginal note:Where person convicted of offence

  (5) Where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1, and

  • (a) the time within which an appeal may be taken against that conviction has expired and the offender has not taken an appeal,

  • (b) the offender has taken an appeal against that conviction and the appeal has been dismissed, or

  • (c) the offender has given written notice to the court that convicted the offender that the offender elects not to appeal the conviction or has abandoned the appeal, as the case may be,

  in addition to any punishment that may be imposed for that offence, the court that made the probation order may, on application by the prosecutor, require the offender to appear before it and, after hearing the prosecutor and the offender,

  • (d) where the probation order was made under paragraph 731(1)(a), revoke the order and impose any sentence that could have been imposed if the passing of sentence had not been suspended, or

  • (e) make such changes to the optional conditions as the court deems desirable, or extend the period for which the order is to remain in force for such period, not exceeding one year, as the court deems desirable,

  and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions or extends the period for which the order is to remain in force, inform the offender of its action and give the offender a copy of the order so endorsed.

• Marginal note:Compelling appearance of person bound

  (6) The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice apply, with such modifications as the circumstances require, to proceedings under subsections (3) and (5).

Marginal note:Transfer of order

• 733 (1) Where an offender who is bound by a probation order becomes a resident of, or is convicted or discharged under section 730 of an offence including an offence under section 733.1 in, a territorial division other than the territorial division where the order was made, on the application of a probation officer, 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 probation 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 probation 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 probation order or to which a probation order has been transferred pursuant to subsection (1) is for any reason unable to act, the powers of that court in relation to the probation order may be exercised by any other court that has equivalent jurisdiction in the same province.

Marginal note:Failure to comply with probation order

• 733.1 (1) An offender who is bound by a probation order and who, without reasonable excuse, fails or refuses to comply with that order is guilty of

  • (a) an indictable offence and is liable to imprisonment for a term of not more than four years; or

  • (b) an offence punishable on summary conviction.

• Marginal note:Where accused may be tried and punished

  (2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be instituted in that place without the consent of the Attorney General of that province.

Fines and Forfeiture

Marginal note:Power of court to impose fine

• 734 (1) Subject to subsection (2), a court that convicts a person, other than an organization, of an offence may fine the offender by making an order under section 734.1

  • (a) if the punishment for the offence does not include a minimum term of imprisonment, in addition to or in lieu of any other sanction that the court is authorized to impose; or

  • (b) if the punishment for the offence includes a minimum term of imprisonment, in addition to any other sanction that the court is required or authorized to impose.

• Marginal note:Offender’s ability to pay

  (2) Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.

• Marginal note:Meaning of default of payment

  (3) For the purposes of this section and sections 734.1 to 737, a person is in default of payment of a fine if the fine has not been paid in full by the time set out in the order made under section 734.1.

• Marginal note:Imprisonment in default of payment

  (4) Where an offender is fined under this section, a term of imprisonment, determined in accordance with subsection (5), shall be deemed to be imposed in default of payment of the fine.

• Marginal note:Determination of term

  (5) The term of imprisonment referred to in subsection (4) is the lesser of

  • (a) the number of days that corresponds to a fraction, rounded down to the nearest whole number, of which

    • (i) the numerator is the unpaid amount of the fine plus the costs and charges of committing and conveying the defaulter to prison, calculated in accordance with regulations made under subsection (7), and

    • (ii) the denominator is equal to eight times the provincial minimum hourly wage, at the time of default, in the province in which the fine was imposed, and

  • (b) the maximum term of imprisonment that the court could itself impose on conviction or, if the punishment for the offence does not include a term of imprisonment, five years in the case of an indictable offence or two years less a day in the case of a summary conviction offence.

• Marginal note:Moneys found on offender

  (6) All or any part of a fine imposed under this section may be taken out of moneys found in the possession of the offender at the time of the arrest of the offender if the court making the order, on being satisfied that ownership of or right to possession of those moneys is not disputed by claimants other than the offender, so directs.

• Marginal note:Provincial regulations

  (7) The lieutenant governor in council of a province may make regulations respecting the calculation of the costs and charges referred to in subparagraph (5)(a)(i) and in paragraph 734.8(1)(b).

• Marginal note:Application to other law

  (8) This section and sections 734.1 to 734.8 and 736 apply to a fine imposed under any Act of Parliament, except that subsections (4) and (5) do not apply if the term of imprisonment in default of payment of the fine provided for in that Act or regulation is

  • (a) calculated by a different method; or

  • (b) specified, either as a minimum or a maximum.

Marginal note:Terms of order imposing fine

734.1 A court that fines an offender under section 734 shall do so by making an order that clearly sets out

• (a) the amount of the fine;

• (b) the manner in which the fine is to be paid;

• (c) the time or times by which the fine, or any portion thereof, must be paid; and

• (d) such other terms respecting the payment of the fine as the court deems appropriate.

Marginal note:Obligations of court

• 734.2 (1) A court that makes an order under section 734.1 shall

  • (a) cause a copy of the order to be given to the offender;

  • (b) explain the substance of sections 734 to 734.8 and 736 to the offender;

  • (c) cause an explanation to be given to the offender of the procedure for applying under section 734.3 for a change to the optional conditions and of any available fine option programs referred to in section 736 as well as the procedure to apply for admission to them; and

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

• Marginal note:For greater certainty

  (2) For greater certainty, a failure to comply with subsection (1) does not affect the validity of the order.

Marginal note:Change in terms of order

734.3 A court that makes an order under section 734.1, or a person designated either by name or by title of office by that court, may, on application by or on behalf of the offender, subject to any rules made by the court under section 482 or 482.1, change any term of the order except the amount of the fine, and any reference in this section and sections 734, 734.1, 734.2 and 734.6 to an order shall be read as including a reference to the order as changed under this section.

Marginal note:Proceeds to go to provincial treasurer

• 734.4 (1) If a fine or forfeiture is imposed or an amount set out in an undertaking, release order or recognizance is forfeited and no provision, other than this section, is made by law for the application of the proceeds, the proceeds belong to Her Majesty in right of the province in which the fine or forfeiture was imposed or the amount was forfeited, and shall be paid by the person who receives them to the treasurer of that province.

• Marginal note:Proceeds to go to Receiver General for Canada

  (2) The proceeds described in subsection (1) belong to Her Majesty in right of Canada and must be paid by the person who receives them to the Receiver General if, as the case may be,

  • (a) the fine or forfeiture is imposed

    • (i) in respect of a contravention of a revenue law of Canada,

    • (ii) in respect of a breach of duty or malfeasance in office by an officer or employee of the Government of Canada, or

    • (iii) in respect of any proceedings instituted at the instance of the Government of Canada in which that government bears the costs of prosecution; or

  • (b) an amount set out in an undertaking, release order or recognizance is forfeited in connection with proceedings mentioned in paragraph (a).

• Marginal note:Direction for payment to municipality

  (3) If a provincial, municipal or local authority bears, in whole or in part, the expense of administering the law under which a fine or forfeiture is imposed or under which proceedings are taken in which an amount set out in an undertaking, release order or recognizance is forfeited,

  • (a) the lieutenant governor in council of a province may direct that the proceeds that belong to Her Majesty in right of the province shall be paid to that authority; and

  • (b) the Governor in Council may direct that the proceeds that belong to Her Majesty in right of Canada shall be paid to that authority.