A Conditional Sentence Order (“CSO”) is a jail sentence that a Justice allows to be served in the community. It is commonly known as house arrest. If you are sentenced to a CSO, you will be required to follow several strict conditions. If you breach any condition, you are at risk of being sent to actual jail for the remainder of your sentence.
What Happens Upon Arrest?
An allegation of a CSO breach is governed by section 742.6 of the Criminal Code. A breach is not a separate criminal offence; however, if the alleged breach is that you committed an offence while serving your CSO, you may be charged with that offence in addition to the actual breach. Once a breach is alleged, it triggers a hearing for a Justice to reconsider the appropriateness of the CSO.
If it is alleged that you have breached your CSO, the time left to serve on your CSO sentence is put on
pause. Your CSO pauses at one of three relevant times, whichever one occurs first:
- When a warrant goes out for your arrest;
- When you are arrested without a warrant; or
- When you are compelled to physically appear in court.
The CSO only resumes from the suspension period once a Justice has found that a breach occurred. Until that point, however, you are to continue to follow your CSO conditions if you remain in the community. If you are taken to jail as a result of breaching your CSO or any other reason, the CSO will not pause.
When Does the CSO Breach “Hearing” Occur?
The breach hearing must occur within 30 days of the allegation or on a date that is “as soon as practicable” after your arrest or the compelling of your appearance in court. If the hearing does not occur within these time requirements, the court may lose the ability to hear the breach allegation.
How does the Crown Prove a CSO Breach?
You are presumed innocent until the Crown proves you are guilty of breaching your CSO. The Crown must show on a balance of probabilities (as opposed to the higher standard of beyond a reasonable doubt) that you breached a condition of your CSO. This means the Crown must prove that it is more likely than not that you breached this condition. Proving a breach allegation requires the Crown to establish that:
- You were bound by a CSO; and,
- You breached a particularized condition of that order.
The Criminal Code allows for the Crown to rely on documents to prove a breach. This is known as an evidentiary shortcut when compared to an actual criminal trial, which has much stricter rules of evidence. To rely on documents, the allegation of a breach must be supported by a written report of a supervisor. If the supervisor can’t provide the evidence necessary to support the allegation based upon their own knowledge, they will need to get signed witness statements from someone with firsthand knowledge. These shortcuts in evidence exist to ensure the hearings are speedy and simple.
If the Crown opts to use this evidentiary shortcut, they must give you reasonable notice. You may also, with permission from the court, request the attendance of the supervisor or a witness for the purpose of cross-examination.
This is not to say that the Crown can’t opt to use oral evidence in its case. Documentary evidence is just one way the Crown could seek to prove a breach.
If the Crown is successful in proving the alleged breach against you, the onus then shifts to you to show on balance of probabilities that there was a reasonable excuse for your non-compliance.
The Crown Proved a CSO Breach – What are the Justice’s Options?
There is a presumption that you serve the remainder of your sentence in jail. However, whether the Justice decides to do this depends on the circumstances of your case. The Justice may:
- Take no action;
- Change the optional conditions of your CSO;
- Suspend the CSO and direct that you serve a portion of the unexpired sentence in jail (the CSO only resumes on your release from jail, with or without changes to the optional conditions); or
- Terminate the CSO and direct that you be committed to jail until the expiration of your sentence.
The Justice cannot lengthen your sentence beyond what is left to be served on your CSO.
Courts have the flexibility to decide the appropriate outcome in your case. However, the burden is on you to establish that an alternative outcome other than terminating your CSO should apply.
What if the Crown fails to Prove the CSO Breach?
If the allegation is withdrawn or dismissed, or you are found to have had a reasonable excuse, the entire suspension period counts toward the remaining time of your CSO. If you were in jail during the suspension period, which means the CSO was not paused, you are entitled to a credit of half the time you spent in jail.
Breaching a CSO triggers serious consequences. The lawyers and articling students at DDSG Criminal Law have a wealth of experience defending against CSO breaches and will work diligently to achieve the best result. If you have any questions or want to hire a lawyer, please contact us now at 780-424-9058.