Conditional Sentence
A conditional sentence is a sentence of imprisonment of less than two years that the offender serves in the community under strict conditions, rather than in jail. Often called "house arrest," though the conditions can extend well beyond residence requirements. Authorized by section 742.1 of the Criminal Code.
Bill C-5, which came into force in November 2022, significantly expanded the availability of conditional sentences by removing several exclusions imposed by earlier amendments. Conditional sentences are now available again for many offences from which they had previously been excluded — including some drug offences, some property offences, and some assault matters. Specific exclusions remain (for example, terrorism offences and certain serious offences punishable by 14 years or more).
Optional conditions can include: house arrest, with limited permitted absences for work, medical appointments, and religious observance; curfews; abstinence from alcohol and non-prescribed drugs; no-contact terms; community service hours; counselling or treatment programs; and restitution.
The Crown bears the onus on a breach allegation only on the balance of probabilities — a much lower threshold than the criminal standard. That makes conditional sentence breaches both easier to prove and more procedurally streamlined than criminal breach charges.
When a conditional sentence is available
A conditional sentence is available where: the court would otherwise impose a sentence of less than two years; service in the community would not endanger the safety of the community; service in the community would be consistent with the fundamental purpose and principles of sentencing; the offence is not specifically excluded by section 742.1 (more on this below); and the offence does not carry a mandatory minimum imprisonment.
Typical conditions
Conditional sentences carry mandatory and optional conditions. Mandatory conditions include: keeping the peace and being of good behaviour; appearing in court when required; reporting to a supervisor as directed; remaining within the jurisdiction of the court (subject to permission to leave); and notifying the supervisor of changes in address, employment, or occupation.
Breaching a conditional sentence
Failing to comply with a conditional sentence condition without reasonable excuse is not a separate offence — it is dealt with through a breach hearing under section 742.6. The court has several options: take no action; vary the conditions; suspend the conditional sentence and order the offender to serve part of the sentence in jail before resuming the conditional sentence in the community; or terminate the conditional sentence and order the offender to serve the remainder in jail.
Why conditional sentences matter
A conditional sentence allows an offender to maintain employment, family responsibilities, and treatment programs while serving a custodial sentence. For first-time offenders or those with significant mitigating personal circumstances, it can be the difference between life-derailing incarceration and a path to rehabilitation.
How Mass Tsang advocates for conditional sentences
Securing a conditional sentence requires careful preparation: a viable release plan, evidence of stability, and submissions addressing the safety and consistency-with-principles requirements. The lawyers at Mass Tsang LLP approach conditional-sentence submissions with the same care as any other contested issue. For more on avoiding incarceration, see our blog post on how to avoid a jail sentence in Ontario.
Related glossary terms
