A suspended sentence is a type of outcome in Canadian sentencing. Under a suspended sentence in Ontario, the offender is released into the community under a probation order. That order can run for up to three years, under section 731(1)(a) of the Criminal Code. For offences without a mandatory minimum, courts use suspended sentences fairly often, particularly for a first offender with a genuine case for rehabilitation.
Suspended Sentence vs Discharge
Both come with a probation order and conditions you have to follow. The difference between a suspended sentence and conditional discharge is in the criminal record. Under conditional discharge, the court finds you guilty, but doesn’t register a conviction. A suspended sentence does register one.
A suspended sentence comes with a criminal record. In order to try to clear it, you will need to apply to the Parole Board of Canada for a record suspension, and only once a waiting period has passed. A conditional discharge will be automatically removed from the database three years after sentencing.
Suspended Sentence for DUI Conviction
Section 731(1)(a) only allows a suspended sentence if there is no minimum punishment prescribed by law for this offence. Impaired driving convictions in Canada always carry a mandatory minimum penalty, even on a first offence. That minimum is a fine starting at $1,000 under section 320.19 of the Criminal Code.
It rules out a suspended sentence from the very first conviction, not only on a second or subsequent one. Repeat offences make the Criminal Code’s impaired driving penalties more serious, including actual jail time. A suspended sentence isn’t an option for any of them.
When a Suspended Sentence Applies in DUI Cases
This generally happens only in two scenarios. The first one is if the driver works with an experienced DUI lawyer who successfully negotiates to drop the impaired driving charge in exchange for a guilty plea to a non-minimum-penalty offence.
The second case type is if the driver is convicted of a DUI and a secondary charge arising from the same incident. If that secondary charge doesn’t carry a mandatory minimum, the judge may impose the mandatory minimum fine or jail time for the DUI but issue a suspended sentence plus probation for the secondary charge.
What Probation Conditions Usually Look Like
Even where a suspended sentence or a discharge is available, probation conditions tend to follow a similar pattern. Typical terms include:
- Reporting to a probation officer at set intervals
- Abstaining from alcohol and non-prescribed drugs
- Completing a remedial or treatment program
- Keeping the peace and being of good behaviour
These conditions look similar whether a suspended sentence, a conditional sentence, or a discharge is in play. If you breach any of these conditions, you will be facing a separate offence under section 733.1 of the Criminal Code.