Corporations

(4) Where, pursuant to section 623, the court proceeds with the trial of a corporation that has not appeared and pleaded and convicts the corporation, the court may, whether or not the corporation was notified that a greater punishment would be sought be reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the corporation and, if any such conviction is proved, may impose a greater punishment by reason thereof.

Section does not apply

(5) This section does not apply to a person referred to in paragraph 745(b).

Sentence justified by any count

728. Where one sentence is passed on a verdict of guilty on two or more counts of an indictment, the sentence is good if any of the counts would have justified the sentence.

Proof of certificate of analyst

729. (1) In

    (a) a prosecution for failure to comply with a condition in a probation order that the accused not have in possession or use drugs, or

    (b) a hearing to determine whether the offender breached a condition of a conditional sentence that the offender not have in possession or use drugs,

a certificate purporting to be signed by an analyst stating that the analyst has analyzed or examined a substance and stating the result of the analysis or examination is admissible in evidence and, in the absence of evidence to the contrary, is proof of the statements contained in the certificate without proof of the signature or official character of the person appearing to have signed the certificate.

Definition of ``analyst''

(2) In this section, ``analyst'' means a person designated as an analyst under the Food and Drugs Act or under the Narcotic Control Act.

Notice of intention to produce certificate

(3) No certificate shall be admitted in evidence unless the party intending to produce it has, before the trial or hearing, as the case may be, given reasonable notice and a copy of the certificate to the party against whom it is to be produced.

Proof of service

(4) Service of any certificate referred to in subsection (1) may be proved by oral evidence given under oath by, or by the affidavit or solemn declaration of, the person claiming to have served it.

Attendance for examination

(5) Notwithstanding subsection (4), the court may require the person who appears to have signed an affidavit or solemn declaration referred to in that subsection to appear before it for examination or cross-examination in respect of the issue of proof of service.

Requiring attendance of analyst

(6) The party against whom a certificate of an analyst is produced may, with leave of the court, require the attendance of the analyst for cross-examination.

Absolute and Conditional Discharges

Absolute and conditional discharge

730. (1) Where an accused, other than a corporation, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable, in the proceedings commenced against the accused, by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

Period for which appearance notice, etc., continues in force

(2) Subject to Part XVI, where an accused who has not been taken into custody or who has been released from custody under or by virtue of any provision of Part XVI pleads guilty of or is found guilty of an offence but is not convicted, the appearance notice, promise to appear, summons, undertaking or recognizance issued to or given or entered into by the accused continues in force, subject to its terms, until a disposition in respect of the accused is made under subsection (1) unless, at the time the accused pleads guilty or is found guilty, the court, judge or justice orders that the accused be taken into custody pending such a disposition.

Effect of discharge

(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that

    (a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence;

    (b) the Attorney General and, in the case of summary conviction proceedings, the informant or the informant's agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and

    (c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.

Where person bound by probation order convicted of offence

(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.

Probation

Making of probation order

731. (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,

    (a) if no minimum punishment is prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order; or

    (b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.

Idem

(2) A court may also make a probation order where it discharges an accused under subsection 730(1).

Firearm, etc., prohibitions

731.1 (1) Before making a probation order, the court shall consider whether section 100 is applicable.

Idem

(2) For greater certainty, a condition of a probation order referred to in paragraph 732.1(3)(d) does not affect the operation of section 100.

Intermittent sentence

732. (1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order

    (a) that the sentence be served intermittently at such times as are specified in the order; and

    (b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence.

Application to vary intermittent sentence

(2) An offender who is ordered to serve a sentence of imprisonment intermittently may, on giving notice to the prosecutor, apply to the court that imposed the sentence to allow it to be served on consecutive days.

Court may vary intermittent sentence if subsequent offence

(3) Where a court imposes a sentence of imprisonment on a person who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the court otherwise orders.

Definitions

732.1 (1) In this section and section 732.2,

``change''
« modification »

``change'', in relation to optional conditions, includes deletions and additions;

``optional conditions''
« conditions facultatives »

``optional conditions'' means the conditions referred to in subsection (3).

Compulsory conditions of probation order

(2) The court shall prescribe, as conditions of a probation order, that the offender do all of the following:

    (a) keep the peace and be of good behaviour;

    (b) appear before the court when required to do so by the court; and

    (c) notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupation.

Optional conditions of probation order

(3) The court may prescribe, as additional conditions of a probation order, that the offender do one or more of the following:

    (a) report to a probation officer

      (i) within two working days, or such longer period as the court directs, after the making of the probation order, and

      (ii) thereafter, when required by the probation officer and in the manner directed by the probation officer;

    (b) remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the probation officer;

    (c) abstain from

      (i) the consumption of alcohol or other intoxicating substances, or

      (ii) the consumption of drugs except in accordance with a medical prescription;

    (d) abstain from owning, possessing or carrying a weapon;

    (e) provide for the support or care of dependants;

    (f) perform up to 240 hours of community service over a period not exceeding eighteen months;

    (g) if the offender agrees, and subject to the program director's acceptance of the offender, participate actively in a treatment program approved by the province; and

    (h) comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsection 738(2), for protecting society and for facilitating the offender's successful reintegration into the community.

Form and period of order

(4) A probation order may be in Form 46, and the court that makes the probation order shall specify therein the period for which it is to remain in force.

Proceedings on making order

(5) A court that makes a probation order shall

    (a) cause to be given to the offender

      (i) a copy of the order,

      (ii) an explanation of the substance of subsections 732.2(3) and (5) and section 733.1, and

      (iii) an explanation of the procedure for applying under subsection 732.2(3) for a change to the optional conditions; and

    (b) take reasonable measures to ensure that the offender understands the order and the explanations given to the offender under paragraph (a).

Coming into force of order

732.2 (1) A probation order comes into force

    (a) on the date on which the order is made;

    (b) where the offender is sentenced to imprisonment under paragraph 731(1)(b) or was previously sentenced to imprisonment for another offence, as soon as the offender is released from prison or, if released from prison on conditional release, at the expiration of the sentence of imprisonment; or

    (c) where the offender is under a conditional sentence, at the expiration of the conditional sentence.

Duration of order and limit on term of order

(2) Subject to subsection (5),

    (a) where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1, or is imprisoned under paragraph 731(1)(b) in default of payment of a fine, the order continues in force except in so far as the sentence renders it impossible for the offender for the time being to comply with the order; and

    (b) no probation order shall continue in force for more than three years after the date on which the order came into force.

Changes to probation order

(3) A court that makes a probation order may at any time, on application by the offender, the probation officer or the prosecutor, require the offender to appear before it and, after hearing the offender and one or both of the probation officer and the prosecutor,

    (a) make any changes to the optional conditions that in the opinion of the court are rendered desirable by a change in the circumstances since those conditions were prescribed,

    (b) relieve the offender, either absolutely or on such terms or for such period as the court deems desirable, of compliance with any optional condition, or

    (c) decrease the period for which the probation order is to remain in force,

and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions, inform the offender of its action and give the offender a copy of the order so endorsed.

Judge may act in chambers

(4) All the functions of the court under subsection (3) may be exercised in chambers.

Where person convicted of offence

(5) Where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1, and

    (a) the time within which an appeal may be taken against that conviction has expired and the offender has not taken an appeal,

    (b) the offender has taken an appeal against that conviction and the appeal has been dismissed, or

    (c) the offender has given written notice to the court that convicted the offender that the offender elects not to appeal the conviction or has abandoned the appeal, as the case may be,

in addition to any punishment that may be imposed for that offence, the court that made the probation order may, on application by the prosecutor, require the offender to appear before it and, after hearing the prosecutor and the offender,

    (d) where the probation order was made under paragraph 731(1)(a), revoke the order and impose any sentence that could have been imposed if the passing of sentence had not been suspended, or

    (e) make such changes to the optional conditions as the court deems desirable, or extend the period for which the order is to remain in force for such period, not exceeding one year, as the court deems desirable,

and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions or extends the period for which the order is to remain in force, inform the offender of its action and give the offender a copy of the order so endorsed.

Compelling appearance of person bound

(6) The provisions of Parts XVI and XVIII with respect to compelling the appearance of an accused before a justice apply, with such modifications as the circumstances require, to proceedings under subsections (3) and (5).

Transfer of order

733. (1) Where an offender who is bound by a probation order becomes a resident of, or is convicted or discharged under section 730 of an offence including an offence under section 733.1 in, a territorial division other than the territorial division where the order was made, the court that made the order may,

    (a) on the application of a probation officer, and

    (b) if both such territorial divisions are not in the same province, with the consent of the Attorney General of the province in which the order was made,

transfer the order to a court in that other territorial division that would, having regard to the mode of trial of the offender, have had jurisdiction to make the order in that other territorial division if the offender had been tried and convicted there of the offence in respect of which the order was made, and the order may thereafter be dealt with and enforced by the court to which it is so transferred in all respects as if that court had made the order.

Where court unable to act

(2) Where a court that has made a probation order or to which a probation order has been transferred pursuant to subsection (1) is for any reason unable to act, the powers of that court in relation to the probation order may be exercised by any other court that has equivalent jurisdiction in the same province.