On probation in Ontario: what are the conditions, and what happens if you break them?

Every probation order requires you to keep the peace and be of good behaviour, come to court when required, and report changes of name, address or work. A judge can add conditions such as reporting, no contact or counselling, and the order can last up to three years. Breaking any condition without a reasonable excuse is a separate offence, punishable by up to four years in prison by indictment.

In the Ontario government's words, probation is ordered by the courts and lets an offender serve the sentence in the community, subject to the conditions in a probation order. It is a different order from a conditional sentence, which is a jail term served in the community; our page on conditional sentences in Ontario explains that order, and a probation order can start when one ends (Criminal Code s. 732.2(1)(c)). This page covers when probation is ordered, what the conditions are, how they can change, and what follows a breach.

When does a court order probation?

Probation is always tied to a sentence or a discharge. In deciding on it, the court considers your age and character, the nature of the offence and the circumstances in which it was committed (s. 731(1)). It follows a finding of guilt, after a trial or a guilty plea.

Before deciding, the judge may order a pre-sentence report, written by a probation officer, which can include sentencing options and recommendations for specific rehabilitative programs.

What conditions can a probation order contain?

Section 732.1 divides conditions into two groups. Three are compulsory in every order. The rest are optional, chosen by the judge for your case.

The province adds a practical standard. Ontario's probation page says conditions must state precisely what is prohibited, avoiding ambiguous, uncertain or contradictory wording, must be enforceable, and must be relevant to the offence and to rehabilitation. A condition that is vague is worth raising with your lawyer before sentencing, not after a breach charge. Where an order requires you to remain within the jurisdiction, any permission to travel outside it, including abroad, has to be in writing from the court or the probation officer.

How does probation work, step by step?

1. The order is made. The court must specify how long it lasts (s. 732.1(4)), give you a copy, explain the conditions and the offence of failing to comply, explain how to apply to change the optional conditions, and take reasonable steps to make sure you understand (s. 732.1(5)). A victim can ask for a copy.
2. It comes into force. On the day it is made; or, if you are also sentenced to jail, when you are released, or when the jail sentence expires if you were released early on conditional release; or, after a conditional sentence, when that sentence ends (s. 732.2(1)).
3. Your first report. If the order has a reporting condition, you report within two working days unless the court set a longer period (s. 732.1(3)(a)).
4. Assessment. Ontario says a probation officer only has authority to supervise someone whose order has a reporting condition. Where the order says "report as directed," the officer completes an assessment of your risk to reoffend and your needs, which sets how often you report.
5. Supervision. The officer monitors and enforces the order and can refer you to counselling, treatment, employment or housing services.
6. The end date. The order ends on its expiry date unless the court revokes or terminates it early, and the court can shorten it at any time (ontario.ca; s. 732.2(3)(c)).

One limit in step 1 matters later: a failure by the court to give those explanations does not make the order invalid (s. 732.1(6)). Read your copy yourself, line by line.

How long can probation last?

No probation order can stay in force for more than three years after the date it came into force (s. 732.2(2)(b)). Ontario adds that an order cannot be made to run consecutively to another one; if you are bound by several orders at once, they run at the same time. If you are convicted of a new offence while on probation, the order continues, except where the new sentence makes it impossible for you to comply for the time being (s. 732.2(2)(a)).

The length also matters after it ends. The waiting period for a record suspension is counted from the end of the whole sentence, including probation; our page on record suspension waiting periods explains the count.

Can the conditions be changed?

Yes, within limits. Under section 732.2(3), you, your probation officer or the prosecutor can apply to the court that made the order. After hearing you and the probation officer or prosecutor, or both, the court can:

• change the optional conditions, if a change in circumstances since they were set makes it desirable;
• relieve you of an optional condition, completely, on terms, or for a period; or
• shorten the period of the order.

The three compulsory conditions are not open to change this way. The judge can deal with the application in chambers rather than open court (s. 732.2(4)), and if the optional conditions change, the court must give you a copy of the endorsed order. Outside what the order itself leaves to the officer, such as reporting times, a probation officer's informal agreement does not change the order: until the court endorses a change, the original wording binds you.

What happens if you break a condition?

Failing or refusing to comply with a probation order without a reasonable excuse is an offence under section 733.1. The Crown can proceed by indictment, with a maximum of four years in prison, or by summary conviction, where the general maximum is a $5,000 fine, two years less a day in jail, or both (s. 787(1)). Our page on the Crown's summary or indictable choice explains how that decision is made. You can be tried where the breach is alleged to have happened or where you are found, arrested or in custody, but proceedings in another province need the consent of the Attorney General of the province where the breach is alleged to have happened (s. 733.1(2)).

A breach is a new criminal charge with its own process. If police hold you, the next step is a bail hearing. A conviction can also reach back to the original sentence:

• Suspended sentence. Once the appeal period has passed or any appeal has ended, the Crown can apply to the court that made the order, which can revoke it and impose any sentence that could have been imposed originally (s. 732.2(5)(d)).
• Any probation order. On the same application, the court can instead change the optional conditions or extend the order by up to one year (s. 732.2(5)(e)).
• Conditional discharge. The court can revoke the discharge, convict you of the original offence and sentence you for it (s. 730(4)).

Probation breaches sit alongside other breach offences with different maximums; compare the penalties for breaching a bail condition, peace bond or restraining order.

What changes the answer?

• What the probation is attached to. Revocation under section 732.2(5)(d) applies to a suspended sentence; revocation under section 730(4) applies to a conditional discharge.
• A reasonable excuse. The offence requires a failure "without reasonable excuse" (s. 733.1(1)). Whether an excuse is reasonable is decided on the evidence, so keep records.
• Compulsory or optional. Only optional conditions can be changed or relieved on an application (s. 732.2(3)).
• A reporting condition. Without one, Ontario says a probation officer has no authority to supervise you.
• Sample conditions. Regular samples require a written notice, the first no earlier than 24 hours after service and the rest at least seven days apart (s. 732.1(7)).
• A wrong condition from the start. If a condition should never have been imposed, a sentence appeal may be the route, and the deadline to appeal is short.

A worked example

For example, Leila is 29 and lives in Brampton. After a guilty plea to an assault charge, prosecuted summarily, at the Brampton courthouse, she receives a conditional discharge with 18 months of probation. The order requires her to report within two working days, have no contact with the complainant, attend counselling as directed and, as always, notify the court or her probation officer in advance of any change of address.

Four months in, she finds a cheaper apartment in Mississauga. She tells her probation officer before she moves, as section 732.1(2)(c) requires. Later she misses a reporting appointment because she is in hospital; she calls the office, keeps the discharge papers, and her lawyer advises her that whether an absence is a "reasonable excuse" is ultimately a question for a court if a charge is ever laid. Because she has a conditional discharge, a new conviction during the 18 months could allow the court to revoke the discharge and convict her of the assault (s. 730(4)). This is a hypothetical illustration, not a prediction of any outcome.

What mistakes do people make?

1. Missing the first report. Two working days pass quickly, and the clock starts when the order is made, unless the court set a longer period.
2. Moving first and telling the officer later. A change of address has to be reported in advance (s. 732.1(2)(c)).
3. Answering a message from the person named in a no-contact condition. The condition covers direct and indirect contact, whoever starts it.
4. Relying on a verbal "that's fine." Changes to conditions are made by the court and endorsed on the order.
5. Assuming the order has ended because reporting slowed down. It runs to its expiry date unless the court ends it early.
6. Ignoring a condition that no longer fits instead of applying to change it under section 732.2(3).

What to do this week

1. Read your copy of the order and write down every condition and the date it ends.
2. Confirm your reporting date and the address of your probation office.
3. Keep a file: appointment cards, counselling attendance, community service hours and any medical notes.
4. Plan any move or job change so that you can notify the court or officer on time.
5. Speak to a lawyer about an application under section 732.2(3) if a condition no longer fits your life.
6. If you are charged with a breach, speak to a lawyer before discussing it with anyone. If you are more at ease in Persian, our guide for Persian-speaking people charged in the GTA explains each stage.

Frequently asked questions

Does probation mean I have a criminal record?

It depends on the sentence it comes with. With a conditional discharge you are deemed not to have been convicted (s. 730(3)); with a suspended sentence, Ontario notes that a conviction is recorded. Our page on what each case outcome means sets out the differences.

Can probation end early?

The court can decrease the period of the order on an application by you, your probation officer or the prosecutor (s. 732.2(3)(c)). The court decides; the officer cannot end it alone.

Who decides how often I report?

The court can set the frequency in the order. If it says "report as directed," Ontario says the probation officer decides after an assessment of your risk and needs.

Can I be tested for drugs or alcohol?

Only if your order includes an abstention condition and a sample condition. Samples can be demanded when there are reasonable grounds to believe you breached the abstention condition, or taken at regular intervals set out in a written notice (s. 732.1(3)(c.1) and (c.2)).

How is probation different from parole?

Probation is ordered by a court as part of the sentence. Parole is a conditional release from a correctional institution, decided by a parole board: the Ontario Parole Board for sentences of two years less one day, and the Parole Board of Canada for sentences of two years or more.

Getting help

Gambriani Law PC represents people charged with failing to comply with probation, and people who need a condition changed, in courts across Ontario, including Toronto, York Region, Peel, Durham Region, Barrie and Windsor, in English and Farsi. Call +1 647 970 3370 or reach us through the contact page.

This page is general information about probation orders in Ontario, not legal advice about your case.