What happens if I breach my CSO?
If you are sentenced to a conditional sentence order (CSO) there are typically several strict conditions you will need to follow. It is always important to understand the conditions of your CSO. If you breach one, or several of these conditions, there could be serious consequences.
First, if you breach a condition of your CSO, the clock will stop running on your sentence. The clock stops running at one of three times:
- When a warrant goes out for your arrest,
- When you are arrested without a warrant, or
- When you are compelled to appear in accordance with section 742.6 of the Criminal Code (whichever is earliest).
For example, if you are sentenced to a 12 month CSO and a warrant goes out for your arrest (or you are arrested without a warrant, or you are compelled to appear) after 6 months, any time beyond the date of that warrant does not count towards the completion of your CSO sentence. The clock on your sentence begins to run again only once a Judge has determined whether you actually breached your CSO. Until that point you are still expected to obey any conditions of your CSO. In effect, you could actually be required to abide by conditions of your CSO longer than your original sentence due to any delays between the warrant, your arrest, and the hearing date.
There are exceptions to this rule if you are denied bail in certain situations.
I was arrested for breaching my CSO, now what?
Once you are arrested with or without a warrant (or your appearance is compelled) for breaching your CSO, you are innocent until the Crown Prosecutor proves you guilty. The Crown Prosecutor has to prove you breached your CSO. You are entitled to have a hearing to determine this within 30 days, or as soon as practicable, of your arrest (or the date you are compelled to appear). Generally, your hearing must be back in the same court, in front of the same Judge who sentenced you to a CSO in the first place.
There are some big differences between a hearing for breaching your CSO, and a trial for any other criminal charge. Firstly, the Crown only has to prove you breached your CSO on a Balance of Probabilities. This means the Crown only has to prove it is more likely than not that you breached your CSO. This is a much lower standard than the Beyond a Reasonable Doubt standard in the typical criminal trial.
Secondly, the Crown has the option of submitting evidence to the Judge in a much quicker and simpler way than a typical criminal trial. For example, normally, in a criminal trial, the Crown must call evidence from a witness directly, to testify in court – their written witness statements are generally not admitted as evidence on their own. In a CSO breach hearing, the Crown has the option of proving the breach by filing a signed report from your probation supervisor, along with any signed witness statements if necessary. The Crown must give you notice they intend to submit these statements as evidence. The Crown does not have to call these individuals to come and testify in person, although they can choose to. This is meant to ensure the proceedings are simple and speedy. This rule does not mean that the report and witness statements can say anything and everything – they are still subject to the same rules of evidence as that person would be when testifying, and should be the same as what that individual would be able to testify about if called.
Finally, unlike a criminal trial, you, or your lawyer, are not entitled to cross examine any witnesses at the hearing. You must make an application to the Judge to have those individuals brought before the court to be cross examined on their report or statement. If you want to cross examine someone on their report or statement, you have the responsibility of showing the Judge that doing so would serve a useful purpose.
After the Crown has presented their case, you can choose to provide evidence of any reasonable excuse for breaching a condition of your CSO. The responsibility of demonstrating you had a reasonable excuse is on you. If the Judge agrees that it is more likely than not breached a condition of your CSO and you did not have a reasonable excuse, you will be found guilty of breaching your CSO.
If the allegation ends up being withdrawn, dismissed, or you successfully provide a reasonable excuse, the time your CSO was suspended for will be applied as “time served” against the remainder of your CSO.
Will I go to jail if I am found guilty of breaching my CSO?
Since a CSO is a jail sentence that is served in the community, typically the presumption is that if you breach a CSO you will serve the remainder of your sentence in jail. However, there may be other options available to the Judge if they find you breached your CSO.
There are 4 main options a Judge has if you are found guilty of breaching your CSO:
- The Judge can take no action, and you continue to serve the rest of your CSO;
- The Judge can change some of the conditions on your CSO, and you continue to serve the rest of your CSO;
- The Judge can suspend your CSO and send you to jail for a portion of the remainder of your CSO. At the end of your time in jail, your CSO resumes and you continue to serve the rest of it with or without changes to the conditions;
- The Judge can cancel your CSO and send you to jail for the remainder of the time you had left.
The Judge cannot lengthen your sentence beyond what is left to be served on your CSO.
There may be some circumstances were the Judge deems you “time served” on your CSO. For example, if there was delay between the date the warrant was put out and the date the warrant was executed, the Judge may deem that some of that time can be used to serve against your remaining CSO sentence.
“Exceptional cases” and the “interests of justice” may also lead to the Judge awarding time served against the remaining time on your CSO sentence. In this case the Judge will consider how serious the breach was, any undue hardship caused to you, and whether you complied with your CSO conditions while it was suspended.
Breaching your Conditional Sentence Order triggers and exceptionally complicated series of events which can have very serious consequences. If you have breached your CSO, an experienced criminal defence lawyer can help you navigate your way through the system as easily as possible. If you would like a free 30-minute consultation, contact us now at 1-833-784-7500.
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