Criminal Code (R.S.C., 1985, c. C-46)

Marginal note:Restitution to victims of offences

• 738 (1) Where an offender is convicted or discharged under section 730 of an offence, the court imposing sentence on or discharging the offender may, on application of the Attorney General or on its own motion, in addition to any other measure imposed on the offender, order that the offender make restitution to another person as follows:

  • (a) in the case of damage to, or the loss or destruction of, the property of any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding the replacement value of the property as of the date the order is imposed, less the value of any part of the property that is returned to that person as of the date it is returned, where the amount is readily ascertainable;

  • (b) in the case of bodily or psychological harm to any person as a result of the commission of the offence or the arrest or attempted arrest of the offender, by paying to the person an amount not exceeding all pecuniary damages incurred as a result of the harm, including loss of income or support, if the amount is readily ascertainable;

  • (c) in the case of bodily harm or threat of bodily harm to the offender’s intimate partner or child, or any other person, as a result of the commission of the offence or the arrest or attempted arrest of the offender, where the intimate partner, child or other person was a member of the offender’s household at the relevant time, by paying to the person in question, independently of any amount ordered to be paid under paragraphs (a) and (b), an amount not exceeding actual and reasonable expenses incurred by that person, as a result of moving out of the offender’s household, for temporary housing, food, child care and transportation, where the amount is readily ascertainable;

  • (d) in the case of an offence under section 402.2 or 403, by paying to a person who, as a result of the offence, incurs expenses to re-establish their identity, including expenses to replace their identity documents and to correct their credit history and credit rating, an amount that is not more than the amount of those expenses, to the extent that they are reasonable, if the amount is readily ascertainable; and

  • (e) in the case of an offence under subsection 162.1(1), by paying to a person who, as a result of the offence, incurs expenses to remove the intimate image from the Internet or other digital network, an amount that is not more than the amount of those expenses, to the extent that they are reasonable, if the amount is readily ascertainable.

• Marginal note:Regulations

  (2) The lieutenant governor in council of a province may make regulations precluding the inclusion of provisions on enforcement of restitution orders as an optional condition of a probation order or of a conditional sentence order.

Marginal note:Restitution to persons acting in good faith

739 Where an offender is convicted or discharged under section 730 of an offence and

• (a) any property obtained as a result of the commission of the offence has been conveyed or transferred for valuable consideration to a person acting in good faith and without notice, or

• (b) the offender has borrowed money on the security of that property from a person acting in good faith and without notice,

the court may, where that property has been returned to the lawful owner or the person who had lawful possession of that property at the time the offence was committed, order the offender to pay as restitution to the person referred to in paragraph (a) or (b) an amount not exceeding the amount of consideration for that property or the total amount outstanding in respect of the loan, as the case may be.

Marginal note:Ability to pay

739.1 The offender’s financial means or ability to pay does not prevent the court from making an order under section 738 or 739.

Marginal note:Payment under order

739.2 In making an order under section 738 or 739, the court shall require the offender to pay the full amount specified in the order by the day specified in the order, unless the court is of the opinion that the amount should be paid in instalments, in which case the court shall set out a periodic payment scheme in the order.

Marginal note:More than one person

739.3 An order under section 738 or 739 may be made in respect of more than one person, in which case the order must specify the amount that is payable to each person. The order may also specify the order of priority in which those persons are to be paid.

Marginal note:Public authority

• 739.4 (1) On the request of a person in whose favour an order under section 738 or 739 would be made, the court may make the order in favour of a public authority, designated by the regulations, who is to be responsible for enforcing the order and remitting to the person making the request all amounts received under it.

• Marginal note:Orders

  (2) The lieutenant governor in council of a province may, by order, designate any person or body as a public authority for the purpose of subsection (1).

Marginal note:Priority to restitution

740 Where the court finds it applicable and appropriate in the circumstances of a case to make, in relation to an offender, an order of restitution under section 738 or 739, and

• (a) an order of forfeiture under this or any other Act of Parliament may be made in respect of property that is the same as property in respect of which the order of restitution may be made, or

• (b) the court is considering ordering the offender to pay a fine and it appears to the court that the offender would not have the means or ability to comply with both the order of restitution and the order to pay the fine,

the court shall first make the order of restitution and shall then consider whether and to what extent an order of forfeiture or an order to pay a fine is appropriate in the circumstances.

Marginal note:Enforcing restitution order

• 741 (1) An offender who fails to pay all of the amount that is ordered to be paid under section 732.1, 738, 739 or 742.3 by the day specified in the order or who fails to make a periodic payment required under the order is in default of the order and the person to whom the amount, or the periodic payment, as the case may be, was to be made may, by filing the order, enter as a judgment any amount ordered to be paid that remains unpaid under the order in any civil court in Canada that has jurisdiction to enter a judgment for that amount, and that judgment is enforceable against the offender in the same manner as if it were a judgment rendered against the offender in that court in civil proceedings.

• Marginal note:Moneys found on offender

  (2) All or any part of an amount that is ordered to be paid under section 738 or 739 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:Notice of orders of restitution

741.1 If a court makes an order of restitution under section 738 or 739, it shall cause notice of the content of the order, or a copy of the order, to be given to the person to whom the restitution is ordered to be paid, and if it is to be paid to a public authority designated by regulations made under subsection 739.4(2), to the public authority and the person to whom the public authority is to remit amounts received under the order.

Marginal note:Civil remedy not affected

741.2 A civil remedy for an act or omission is not affected by reason only that an order for restitution under section 738 or 739 has been made in respect of that act or omission.

Conditional Sentence of Imprisonment

Marginal note:Definitions

742 In sections 742.1 to 742.7,

change

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

optional conditions

optional conditions means the conditions referred to in subsection 742.3(2); (conditions facultatives)

supervisor

supervisor means a person designated by the Attorney General, either by name or by title of office, as a supervisor for the purposes of sections 742.1 to 742.7. (agent de surveillance)

Marginal note:Imposing of conditional sentence

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

• (a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;

• (b) the offence is not an offence punishable by a minimum term of imprisonment;

• (c) the offence is not an offence under any of the following provisions:

  • (i) section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),

  • (ii) section 269.1 (torture), or

  • (iii) section 318 (advocating genocide); and

• (d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.

• (e) [Repealed, 2022, c. 15, s. 14]

• (f) [Repealed, 2022, c. 15, s. 14]

Marginal note:Firearm, etc., prohibitions

• 742.2 (1) Before imposing a conditional sentence under section 742.1, 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 conditional sentence order referred to in paragraph 742.3(2)(b) does not affect the operation of section 109 or 110.

Marginal note:Compulsory conditions of conditional sentence order

• 742.3 (1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:

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

  • (b) appear before the court when required to do so by the court;

  • (c) report to a supervisor

    • (i) within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and

    • (ii) thereafter, when required by the supervisor and in the manner directed by the supervisor;

  • (d) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and

  • (e) notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

• (1.1) [Repealed, 2019, c. 25, s. 303]

• (1.2) [Repealed, 2019, c. 25, s. 303]

• (1.3) [Repealed, 2019, c. 25, s. 303]

• Marginal note:Optional conditions of conditional sentence order

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

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

  • (a.1) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, the supervisor or someone designated under subsection (7) 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 suspect 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;

  • (a.2) provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified by the supervisor 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;

  • (a.3) 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 justice considers necessary;

  • (b) abstain from owning, possessing or carrying a weapon;

  • (c) provide for the support or care of dependants;

  • (d) perform up to 240 hours of community service over a period not exceeding eighteen months;

  • (e) attend a treatment program approved by the province; and

  • (f) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

• Marginal note:Obligations of court

  (3) A court that makes an order under this section shall

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

  • (b) explain the substance of subsection (1) and sections 742.4 and 742.6 to the offender;

  • (c) cause an explanation to be given to the offender of the procedure for applying under section 742.4 for a change to the optional conditions; and

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

• Marginal note:For greater certainty

  (4) For greater certainty, a failure to comply with subsection (3) does not affect the validity of the order.

• Marginal note:Notice — samples at regular intervals

  (5) The notice referred to in paragraph (2)(a.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

  (6) For the purposes of paragraphs (2)(a.1) and (a.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

  (7) For the purpose of paragraph (2)(a.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

  (8) Samples of bodily substances referred to in paragraphs (2)(a.1) and (a.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 (6).

• Marginal note:Destruction of samples

  (9) 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 conditional sentence order to be destroyed within the periods prescribed by regulation, unless the samples are reasonably expected to be used as evidence in proceedings under section 742.6.

• Marginal note:Regulations

  (10) The Governor in Council may make regulations

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

  • (b) respecting the designations and specifications referred to in subsections (6) and (7);

  • (c) prescribing the periods within which samples of bodily substances are to be destroyed under subsection (9); and

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