Probation Breaches in Ontario
Guide to probation breach charges in Ontario under Criminal Code s.733.1, covering types of breaches, consequences, common conditions breached, and available defences.
Probation is one of the most common sentences imposed by criminal courts in Ontario. It allows a person to serve their sentence in the community under supervision and subject to conditions. While probation is a less severe alternative to incarceration, it comes with obligations that must be taken seriously. Failing to comply with probation conditions is not simply a technical matter — it is a separate criminal offence under the Criminal Code that can result in additional charges, a new criminal conviction, and imprisonment.
This guide explains how probation works in Ontario, what happens when conditions are breached, the potential consequences of a breach charge, and what defences may be available.
How Probation Works
Probation is governed by sections 731 through 733.1 of the Criminal Code. A court may impose a probation order as part of a sentence, either alone or in combination with other sentencing options such as a fine, a conditional discharge, or a period of imprisonment of two years or less.
Every probation order includes three mandatory (statutory) conditions:
- Keep the peace and be of good behaviour
- Appear before the court when required to do so
- Notify the court or probation officer in advance of any change of name or address, and promptly notify them of any change of employment or occupation
In addition to these mandatory conditions, the court may impose a wide range of optional conditions tailored to the offender and the offence. Common optional conditions include:
- Report to a probation officer as directed
- No contact with specified persons (complainant, co-accused, witnesses)
- Remain within the jurisdiction (province or district)
- Abstain from alcohol, drugs, or both
- Attend counselling or treatment programs (anger management, substance abuse, mental health)
- Perform community service hours
- Observe a curfew
- Not possess weapons
- Provide a DNA sample (for designated offences)
A probation order can last up to three years. It begins on the date the order is made or, if the offender is also sentenced to imprisonment, on the date of release from custody.
The Offence of Breach of Probation: Section 733.1
Section 733.1 of the Criminal Code makes it an offence to fail, without reasonable excuse, to comply with a probation order. The offence requires the Crown to prove:
- A valid probation order was in effect at the relevant time
- The accused was aware of the conditions (or ought to have been aware)
- The accused failed to comply with a condition of the order
- The failure was without reasonable excuse
Breach of probation is a hybrid offence. On indictment, it carries a maximum of four years imprisonment. On summary conviction, the maximum is two years less a day.
The charge is typically laid by police, often based on information from the probation officer who supervises the offender. In some cases, a breach may come to light during a routine police interaction, such as a traffic stop where the officer discovers the person is violating a curfew condition.
Common Types of Breaches
In Ontario courts, certain types of breaches appear with particular frequency:
No-contact breaches. Violating a condition not to contact a specific person is one of the most commonly charged breaches, particularly in cases arising from domestic assault or other relationship-based offences. Contact includes direct communication (calls, texts, in-person visits) as well as indirect contact (through a third party, social media, or email).
Curfew breaches. Failing to be at the required location during curfew hours is a straightforward breach that is often detected through police checks at the offender's residence.
Failure to report. Missing a scheduled appointment with a probation officer without prior arrangement is a breach. Probation officers typically have some discretion in how they handle missed appointments, but repeated failures to report will generally result in a breach charge.
Abstinence breaches. Consuming alcohol or drugs in violation of an abstinence condition. These breaches may be detected through urinalysis, observed intoxication, or police interactions.
Failure to complete community service. If the probation order requires a specified number of community service hours, failure to complete them within the probation period constitutes a breach.
"Keep the peace" breach. Being charged with a new criminal offence while on probation constitutes a breach of the mandatory "keep the peace and be of good behaviour" condition, even if the new charge has not yet been proven.
Consequences of a Breach Conviction
A conviction for breach of probation carries several consequences beyond the direct sentence imposed:
Sentencing for the breach. The sentence for a breach of probation depends on the nature and seriousness of the breach, the original offence, and the offender's overall record. Options range from a discharge (in limited circumstances) to probation, fines, or imprisonment. For repeated or serious breaches, courts impose increasingly severe sentences to reflect the offender's disregard for court orders.
Impact on the original matter. A breach charge can affect any pending proceedings related to the original offence. If the offender was on probation following a conditional discharge, a breach may result in the discharge being revoked and a conviction being entered for the original offence.
Future bail implications. A history of breaching conditions is a significant factor in bail hearings for any subsequent charges. Courts are less likely to release an accused on conditions if there is evidence that the person does not comply with court-ordered conditions. This can affect bail hearings for years to come.
Criminal record. A breach of probation conviction adds another entry to the offender's criminal record. Given that the person already has a record from the underlying offence, this compounds the consequences of a criminal record.
Defences to Breach of Probation
Several defences may be available to a charge of breach of probation:
Reasonable excuse. The Criminal Code specifically provides that a breach must be "without reasonable excuse." If the offender had a legitimate reason for non-compliance, this can constitute a defence. Examples include a medical emergency that prevented reporting to the probation officer, a genuine misunderstanding about the conditions, or circumstances beyond the offender's control that made compliance impossible.
Impossibility. If the condition was genuinely impossible to comply with, this may provide a defence. For example, if the offender was ordered to attend a specific program that has a waiting list and could not be enrolled within the probation period despite reasonable efforts, this may amount to impossibility.
Lack of awareness. The Crown must prove that the offender was aware of the probation conditions. If the offender was not properly served with the probation order or was not present when the conditions were imposed and was not otherwise informed, this may be a defence.
Ambiguity in the conditions. If the probation condition is vague or ambiguous, the offender may argue that their conduct did not actually violate the condition as properly interpreted. Courts interpret conditions strictly and resolve ambiguity in favour of the offender.
Charter breaches. If the breach was discovered as a result of an unlawful search or arbitrary detention, the evidence may be subject to exclusion under s.24(2) of the Charter. Understanding your rights when interacting with police is important in this context.
Varying Probation Conditions
If probation conditions are proving difficult to comply with, or if circumstances have changed, the appropriate response is to apply to the court for a variation, not to simply stop complying. Under s.732.2(3) of the Criminal Code, the offender, the probation officer, or the Crown may apply to the court that made the order to vary the conditions.
Common reasons for seeking a variation include:
- A change in employment that conflicts with curfew or reporting conditions
- A change of residence that requires an update to the address on the order
- Completion of a counselling program that was a condition, seeking removal of the condition
- Changed family circumstances that make a no-contact condition problematic
The court will vary the conditions if satisfied that the change is desirable in light of changed circumstances. This process is straightforward and far preferable to the consequences of a breach.
Speak with a Criminal Lawyer. If you are facing a probation breach charge, or if you are concerned about your ability to comply with your probation conditions, legal advice can help you understand your options. A lawyer can assess potential defences to a breach charge or assist with an application to vary your conditions. Contact a criminal lawyer to discuss your situation in a confidential consultation.
Frequently Asked Questions
- What happens if I breach my probation in Ontario?
- Breaching a probation condition is a criminal offence under s.733.1 of the Criminal Code. It is a hybrid offence carrying up to four years imprisonment on indictment or two years less a day on summary conviction. A breach charge is in addition to any consequences for the original offence and can significantly affect your overall situation.
- What are the most common probation breaches?
- Common breaches include failing to report to a probation officer, violating no-contact conditions, breaking curfew, failing to attend required counselling or treatment programs, consuming alcohol or drugs contrary to an abstinence condition, and failing to complete community service hours within the required timeframe.
- Can I go to jail for breaching probation?
- Yes. A probation breach is a criminal offence that carries the possibility of imprisonment. The actual sentence depends on the nature of the breach, the original offence, the offender's record, and whether the breach involved any new criminal conduct. For serious or repeated breaches, a custodial sentence is a real possibility.
- What defences are available for a probation breach charge?
- Defences include reasonable excuse (a legitimate reason for non-compliance, such as a medical emergency), impossibility (the condition was impossible to comply with), lack of wilfulness (the breach was not intentional), unclear conditions (the probation order was ambiguous), and challenging whether the accused was properly informed of the conditions.
- Can probation conditions be changed?
- Yes. Under s.732.2(3) of the Criminal Code, a probation order can be varied by the court that made the order, on application by the offender, the probation officer, or the Crown. Conditions can be added, removed, or modified if the court is satisfied that the variation is desirable because of a change in circumstances.