A conditional sentence order allows a person to serve what would otherwise be a custodial sentence in the community, under strict conditions, rather than in an institution. This is sometimes referred to informally as house arrest. This guide explains, in general terms, the eligibility requirements for a conditional sentence under section 742.1 of the Criminal Code, how eligibility has changed following Bill C-5, and the kinds of conditions commonly attached. It is general information only and does not replace legal advice about a specific case. For the broader sentencing framework, see our overview of criminal sentencing in Ontario.
What Is a Conditional Sentence Order?
A conditional sentence order is a sentence of imprisonment that a court permits to be served in the community, subject to strict conditions, rather than in a correctional facility. It remains a custodial sentence in a legal sense, but the way it is served is fundamentally different from time spent in an institution. If the conditions are breached, the remainder of the sentence, or a portion of it, can be converted into actual time in custody.
General Eligibility Requirements
Under section 742.1 of the Criminal Code, a court can only impose a conditional sentence where several general conditions are met. The sentence the court would otherwise impose must be a term of imprisonment of less than two years. The offence must not carry a mandatory minimum sentence of imprisonment. The offence must not fall within the categories of offences the Criminal Code excludes from conditional sentence eligibility. And the court must be satisfied that serving the sentence in the community would not endanger the safety of the community, while also being consistent with the fundamental purpose and principles of sentencing.
Because each of these requirements depends on the specific offence and the details of the case, this page does not state whether a conditional sentence would be available for any particular charge. A lawyer reviewing the specific offence, its classification, and any applicable mandatory minimum can advise on whether a conditional sentence is a realistic option.
Restrictions Before Bill C-5
Conditional sentence eligibility has not stayed the same over time. The Safe Streets and Communities Act, passed in 2012, added a substantial list of offences to the categories excluded from conditional sentence eligibility, including many offences prosecuted by indictment with a maximum penalty of 14 years or life, and many offences prosecuted by indictment with a maximum penalty of 10 years that involved bodily harm, the import, export, trafficking or production of drugs, or the use of a weapon, among other categories. These restrictions, combined with the growth of mandatory minimum sentences during the same period, significantly narrowed the range of cases in which a conditional sentence was legally available.
What Bill C-5 Changed in 2022
Bill C-5, which received royal assent in November 2022, amended section 742.1 to remove the blanket exclusion of conditional sentences for offences carrying maximum penalties of 10 or 14 years that had been added by the 2012 legislation, along with the specific list of offences that law had made ineligible. Bill C-5 also repealed a number of mandatory minimum sentences under the Criminal Code and the Controlled Drugs and Substances Act, which separately expands conditional sentence eligibility, since an offence with no mandatory minimum can meet that particular requirement of section 742.1 where it previously could not.
The practical effect of these changes is that conditional sentences became available again for a considerably wider range of offences than had been the case between 2012 and 2022, provided the other requirements of section 742.1, including the under-two-years and community safety requirements, are also met. Our page on drug trafficking, for example, explains that mandatory minimum sentences for trafficking offences under the Controlled Drugs and Substances Act were repealed by this same legislation, which is relevant background for understanding why conditional sentence eligibility for some drug offences has changed.
Conditional sentence eligibility has changed more than once in the last fifteen years and can depend on the exact offence, how it is prosecuted, and any applicable mandatory minimum. Confirm current eligibility for a specific charge with a lawyer rather than relying on general statements about the law at any single point in time.
Offences That Remain Excluded
Even after Bill C-5, section 742.1 continues to exclude certain categories of offences from conditional sentence eligibility outright, including terrorism offences and criminal organization offences prosecuted by indictment with a maximum term of imprisonment of 10 years or more, and specific offences such as advocating genocide and torture. Offences that carry a mandatory minimum sentence of imprisonment also remain ineligible, since the requirement that no mandatory minimum apply was not affected by Bill C-5. Because the precise list and its interactions with other provisions can be technical, a lawyer should confirm whether a specific offence falls into an excluded category.
The Community Safety Requirement
Even where an offence is not excluded by category and carries no mandatory minimum, a court must still be satisfied that allowing the sentence to be served in the community would not endanger community safety, considering factors such as the risk of the offender reoffending and the gravity of the harm that could result. This is a case-specific determination made by the sentencing judge based on the evidence, including any pre-sentence report, and is not something this general page can predict for a specific case.
Conditions Commonly Attached
A conditional sentence order typically includes conditions substantially more restrictive than those found in a standard probation order, reflecting the fact that it is standing in for a period of custody. Common conditions include a curfew or full house arrest, meaning the person must remain at their residence except for specific approved purposes such as work, medical appointments, or attending court; regular reporting to a supervising officer; restrictions on travel outside a specified area; and, depending on the case, conditions such as abstaining from alcohol or drugs, participating in treatment or counselling, or performing community service. As with probation, exactly which conditions are imposed depends on the specific case.
Breaching a Conditional Sentence
Breaching a condition of a conditional sentence order is treated seriously and can result in the remaining portion of the sentence being converted into actual custody, in addition to potential separate criminal consequences depending on the nature of the breach. This is a significant distinction from a standard probation order and is one reason understanding and carefully following every condition of a conditional sentence order matters a great deal. A lawyer can advise on obligations under a specific order and on next steps if a breach is alleged.
Conditional Sentences vs. Probation
A conditional sentence and probation are often confused because both generally involve conditions followed in the community, but they are legally distinct. A conditional sentence is itself a form of custodial sentence served in the community, subject to the eligibility requirements described above, while probation is a separate sentencing option that can stand alone or follow another sentence, as explained in our page on probation. A conditional sentence order can also include a probationary period that follows it in some cases, adding a further layer to how these two sentencing tools can interact.
Frequently Asked Questions
What is the maximum sentence that can be served as a conditional sentence?
The sentence the court would otherwise impose must be less than two years for a conditional sentence to be legally available, subject to the other eligibility requirements under section 742.1.
Did Bill C-5 make conditional sentences available for every offence?
No. Bill C-5 removed a substantial list of exclusions added in 2012 and repealed a number of mandatory minimum sentences, but some categories of offences, including certain terrorism and criminal organization offences, remain excluded, and offences that still carry a mandatory minimum sentence remain ineligible.
Is a conditional sentence the same as house arrest?
House arrest is often one of the conditions imposed as part of a conditional sentence order, but a conditional sentence can also include other conditions beyond house arrest, such as curfews, reporting, and treatment requirements.
What happens if I breach a conditional sentence order?
A breach can result in the remaining portion of the sentence being converted into actual custody, in addition to any separate consequences depending on the nature of the breach. A lawyer can advise on a specific situation.
How is a conditional sentence different from probation?
A conditional sentence is a custodial sentence served in the community under strict conditions, available only where specific eligibility requirements are met. Probation is a separate sentencing option that can stand alone or follow another sentence. See our page on probation for more detail.
Does every offence with no mandatory minimum qualify for a conditional sentence?
Not necessarily. The offence must also not fall into an excluded category, the otherwise- appropriate sentence must be less than two years, and the court must be satisfied that community safety would not be endangered. A lawyer can assess all of these requirements for a specific charge.