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TRIAL AND SENTENCING Trial Application of Part 28. This Part applies to a proceeding commenced under this Act. R.S.O. 1990, c. P.33, s. 28. Territorial jurisdiction 29. (1) Subject to subsection (2), a proceeding in respect of an offence shall be heard and determined by the Ontario Court of Justice sitting in the county or district in which the offence occurred or in the area specified in the transfer agreement made under Part X. 2009, c. 33, Sched. 4, s. 1 (35). Idem (2) A proceeding in respect of an offence may be heard and determined in a county or district that adjoins that in which the offence occurred if, (a) the court holds sittings in a place reasonably proximate to the place where the offence occurred; and (b) the place of sitting referred to in clause (a) is named in the summons or offence notice. R.S.O. 1990, c. P.33, s. 29 (2). Transfer to proper county (3) Where a proceeding is taken in a county or district other than one referred to in subsection (1) or (2), the court shall order that the proceeding be transferred to the proper county or district and may where the defendant appears award costs under section 60. R.S.O. 1990, c. P.33, s. 29 (3). Change of venue (4) Where, on the motion of a defendant or prosecutor made to the court at the location named in the information or certificate, it appears to the court that, (a) it would be appropriate in the interests of justice to do so; or (b) both the defendant and prosecutor consent thereto, the court may order that the proceeding be heard and determined at another location in Ontario. R.S.O. 1990, c. P.33, s. 29 (4). Conditions (5) The court may, in an order made on a motion by the prosecutor under subsection (3) or (4), prescribe conditions that it thinks proper with respect to the payment of additional expenses caused to the defendant as a result of the change of venue. R.S.O. 1990, c. P.33, s. 29 (5). Time of order for change of venue (6) An order under subsection (3) or (4) may be made even if a motion preliminary to trial has been disposed of or the plea has been taken and it may be made at any time before evidence has been heard. R.S.O. 1990, c. P.33, s. 29 (6). Preliminary motions (7) The court at a location to which a proceeding is transferred under this section may receive and determine any motion preliminary to trial although the same matter was determined by the court at the location from which the proceeding was transferred. R.S.O. 1990, c. P.33, s. 29 (7). Delivery of papers (8) Where an order is made under subsection (3) or (4), the clerk of the court at the location where the trial was to be held before the order was made shall deliver any material in his or her possession in connection with the proceeding forthwith to the clerk of the court at the location where the trial is ordered to be held. R.S.O. 1990, c. P.33, s. 29 (8). Justice presiding at trial 30. (1) The justice presiding when evidence is first taken at the trial shall preside over the whole of the trial. R.S.O. 1990, c. P.33, s. 30 (1). When presiding justice unable to act before adjudication (2) Where evidence has been taken at a trial and, before making his or her adjudication, the presiding justice dies or in his or her opinion or the opinion of the Chief Justice of the Ontario Court of Justice is for any reason unable to continue, another justice shall conduct the hearing again as a new trial. R.S.O. 1990, c. P.33, s. 30 (2); 2000, c. 26, Sched. A, s. 13 (6); 2002, c. 18, Sched. A, s. 15 (6). When presiding justice unable to act after adjudication (3) Where evidence has been taken at a trial and, after making his or her adjudication but before making his or her order or imposing sentence, the presiding justice dies or in his or her opinion or the opinion of the Chief Justice of the Ontario Court of Justice is for any reason unable to continue, another justice may make the order or impose the sentence that is authorized by law. R.S.O. 1990, c. P.33, s. 30 (3); 2000, c. 26, Sched. A, s. 13 (6); 2002, c. 18, Sched. A, s. 15 (6). Consent to change presiding justice (4) A justice presiding at a trial may, at any stage of the trial and upon the consent of the prosecutor and defendant, order that the trial be conducted by another justice and, upon the order being given, subsection (2) applies as if the justice were unable to act. R.S.O. 1990, c. P.33, s. 30 (4). Retention of jurisdiction 31. The court retains jurisdiction over the information or certificate even if the court fails to exercise its jurisdiction at any particular time or the provisions of this Act respecting adjournments are not complied with. R.S.O. 1990, c. P.33, s. 31. Stay of proceeding 32. (1) In addition to his or her right to withdraw a charge, the Attorney General or his or her agent may stay a proceeding at any time before judgment by direction in court to the clerk of the court and thereupon any recognizance relating to the proceeding is vacated. R.S.O. 1990, c. P.33, s. 32 (1); 2006, c. 21, Sched. C, s. 131 (5). Recommencement (2) A proceeding stayed under subsection (1) may be recommenced by direction of the Attorney General, the Deputy Attorney General or a Crown Attorney to the clerk of the court but a proceeding that is stayed shall not be recommenced, (a) later than one year after the stay; or (b) after the expiration of any limitation period applicable, which shall run as if the proceeding had not been commenced until the recommencement, whichever is the earlier. R.S.O. 1990, c. P.33, s. 32 (2). Dividing counts 33. (1) A defendant may at any stage of the proceeding make a motion to the court to amend or to divide a count that, (a) charges in the alternative different matters, acts or omissions that are stated in the alternative in the enactment that creates or describes the offence; or (b) is double or multifarious, on the ground that, as framed, it prejudices the defendant in the defendant’s defence. Idem (2) Upon a motion under subsection (1), where the court is satisfied that the ends of justice so require, it may order that a count be amended or divided into two or more counts, and thereupon a formal commencement may be inserted before each of the counts into which it is divided. R.S.O. 1990, c. P.33, s. 33. Amendment of information or certificate 34. (1) The court may, at any stage of the proceeding, amend the information or certificate as may be necessary if it appears that the information or certificate, (a) fails to state or states defectively anything that is requisite to charge the offence; (b) does not negative an exception that should be negatived; or (c) is in any way defective in substance or in form. Idem (2) The court may, during the trial, amend the information or certificate as may be necessary if the matters to be alleged in the proposed amendment are disclosed by the evidence taken at the trial. Variances between charge and evidence (3) A variance between the information or certificate and the evidence taken on the trial is not material with respect to, (a) the time when the offence is alleged to have been committed, if it is proved that the information was laid or certificate issued within the prescribed period of limitation; or (b) the place where the subject-matter of the proceeding is alleged to have arisen, except in an issue as to the jurisdiction of the court. Considerations on amendment (4) The court shall, in considering whether or not an amendment should be made, consider, (a) the evidence taken on the trial, if any; (b) the circumstances of the case; (c) whether the defendant has been misled or prejudiced in the defendant’s defence by a variance, error or omission; and (d) whether, having regard to the merits of the case, the proposed amendment can be made without injustice being done. Amendment, question of law (5) The question whether an order to amend an information or certificate should be granted or refused is a question of law. R.S.O. 1990, c. P.33, s. 34 (1-5). Endorsement of order to amend (6) An order to amend an information or certificate shall be endorsed on the information or certificate as part of the record and the trial shall proceed as if the information or certificate had been originally laid as amended. R.S.O. 1990, c. P.33, s. 34 (6); 1993, c. 27, Sched. Particulars 35. The court may, before or during trial, if it is satisfied that it is necessary for a fair trial, order that a particular, further describing any matter relevant to the proceeding, be furnished to the defendant. R.S.O. 1990, c. P.33, s. 35. Motion to quash information or certificate 36. (1) An objection to an information or certificate for a defect apparent on its face shall be taken by motion to quash the information or certificate before the defendant has pleaded, and thereafter only by leave of the court. Grounds for quashing (2) The court shall not quash an information or certificate unless an amendment or particulars under section 33, 34 or 35 would fail to satisfy the ends of justice. R.S.O. 1990, c. P.33, s. 36. Costs on amendment or particulars 37. Where the information or certificate is amended or particulars are ordered and an adjournment is necessary as a result thereof, the court may make an order under section 60 for costs resulting from the adjournment. R.S.O. 1990, c. P.33, s. 37. Joinder of counts or defendants 38. (1) The court may, before trial, where it is satisfied that the ends of justice so require, direct that separate counts, informations or certificates be tried together or that persons who are charged separately be tried together. Separate trials (2) The court may, before or during the trial, where it is satisfied that the ends of justice so require, direct that separate counts, informations or certificates be tried separately or that persons who are charged jointly or being tried together be tried separately. R.S.O. 1990, c. P.33, s. 38. Issuance of summons 39. (1) Where a justice is satisfied that a person is able to give material evidence in a proceeding under this Act, the justice may issue a summons requiring the person to attend to give evidence and bring with him or her any writings or things referred to in the summons. R.S.O. 1990, c. P.33, s. 39 (1); 1993, c. 27, Sched. Service (2) A summons shall be served and the service shall be proved in the same manner as a summons under section 26. R.S.O. 1990, c. P.33, s. 39 (2). Exception (2.1) Despite subsection (2), a summons served under this section may be served by a person other than a provincial offences officer. 2009, c. 33, Sched. 4, s. 1 (36). Attendance (3) A person who is served with a summons shall attend at the time and place stated in the summons to give evidence and, if required by the summons, shall bring with him or her any writing or other thing that the person has in his or her possession or under his or her control relating to the subject-matter of the proceeding. R.S.O. 1990, c. P.33, s. 39 (3). Remaining in attendance (4) A person who is served with a summons shall remain in attendance during the hearing and the hearing as resumed after adjournment from time to time unless the person is excused from attendance by the presiding justice. R.S.O. 1990, c. P.33, s. 39 (4). Arrest of witness 40. (1) Where a judge is satisfied upon evidence under oath or affirmation, that a person is able to give material evidence that is necessary in a proceeding under this Act and, (a) will not attend if a summons is served; or (b) attempts to serve a summons have been made and have failed because the person is evading service, the judge may issue a warrant in the prescribed form for the arrest of the person. Idem (2) Where a person who has been served with a summons to attend to give evidence in a proceeding does not attend or remain in attendance, the court may, if it is established, (a) that the summons has been served; and (b) that the person is able to give material evidence that is necessary, issue or cause to be issued a warrant in the prescribed form for the arrest of the person. Bringing before justice (3) The police officer who arrests a person under a warrant issued under subsection (1) or (2) shall immediately take the person before a justice. Release on recognizance (4) Unless the justice is satisfied that it is necessary to detain a person in custody to ensure his or her attendance to give evidence, the justice shall order the person released upon condition that the person enter into a recognizance in such amount and with such sureties, if any, as are reasonably necessary to ensure his or her attendance. Bringing before judge (5) Where a person is not released under subsection (4), the justice of the peace shall cause the person to be brought before a judge within two days of the justice’s decision. Detention (6) Where the judge is satisfied that it is necessary to detain the person in custody to ensure his or her attendance to give evidence, the judge may order that the person be detained in custody to testify at the trial or to have his or her evidence taken by a commissioner under an order made under subsection (11). Release on recognizance (7) Where the judge does not make an order under subsection (6), he or she shall order that the person be released upon condition that the person enter into a recognizance in such amount and with such sureties, if any, as are reasonably necessary to ensure his or her attendance. Maximum imprisonment (8) A person who is ordered to be detained in custody under subsection (6) or is not released in fact under subsection (7) shall not be detained in custody for a period longer than ten days. Release when no longer required (9) A judge, or the justice presiding at a trial, may at any time order the release of a person in custody under this section where he or she is satisfied that the detention is no longer justified. Arrest on breach of recognizance (10) Where a person who is bound by a recognizance to attend to give evidence in any proceeding does not attend or remain in attendance, the court may issue a warrant in the prescribed form for the arrest of that person and, (a) where the person is brought directly before the court, subsections (6) and (7) apply; and (b) where the person is not brought directly before the court, subsections (3) to (7) apply. Commission evidence of witness in custody (11) A judge or the justice presiding at the trial may order that the evidence of a person held in custody under this section be taken by a commissioner under section 43, which applies thereto in the same manner as to a witness who is unable to attend by reason of illness. R.S.O. 1990, c. P.33, s. 40. Order for person in a prison to attend 41. (1) Where a person whose attendance is required in court to stand trial or to give evidence is confined in a prison, and a judge is satisfied, upon evidence under oath or affirmation orally or by affidavit, that the person’s attendance is necessary to satisfy the ends of justice, the judge may issue an order in the prescribed form that the person be brought before the court, from day to day, as may be necessary. Idem (2) An order under subsection (1) shall be addressed to the person who has custody of the prisoner and on receipt thereof that person shall, (a) deliver the prisoner to the police officer or other person who is named in the order to receive the prisoner; or (b) bring the prisoner before the court upon payment of the person’s reasonable charges in respect thereof. Idem (3) An order made under subsection (1) shall direct the manner in which the person shall be kept in custody and returned to the prison from which he or she is brought. R.S.O. 1990, c. P.33, s. 41. Penalty for failure to attend 42. (1) Every person who, being required by law to attend or remain in attendance at a hearing, fails without lawful excuse to attend or remain in attendance accordingly is guilty of an offence and on conviction is liable to a fine of not more than $2,000, or to imprisonment for a term of not more than thirty days, or to both. Proof of failure to attend (2) In a proceeding under subsection (1), a certificate of the clerk of the court or a justice stating that the defendant failed to attend is admissible in evidence as proof, in the absence of evidence to the contrary, of the fact without proof of the signature or office of the person appearing to have signed the certificate. R.S.O. 1990, c. P.33, s. 42. Order for evidence by commission 43. (1) Upon the motion of the defendant or prosecutor, a judge or, during trial, the court may by order appoint a commissioner to take the evidence of a witness who is out of Ontario or is not likely to be able to attend the trial by reason of illness or physical disability or for some other good and sufficient cause. R.S.O. 1990, c. P.33, s. 43 (1). Admission of commission evidence (2) Evidence taken by a commissioner appointed under subsection (1) may be read in evidence in the proceeding if, (a) it is proved by oral evidence or by affidavit that the witness is unable to attend for a reason set out in subsection (1); (b) the transcript of the evidence is signed by the commissioner by or before whom it purports to have been taken; and (c) it is proved to the satisfaction of the court that reasonable notice of the time and place for taking the evidence was given to the other party, and the party had full opportunity to cross-examine the witness. R.S.O. 1990, c. P.33, s. 43 (2). Attendance of accused (3) An order under subsection (1) may make provision to enable the defendant to be present or represented by representative when the evidence is taken, but failure of the defendant to be present or to be represented by representative in accordance with the order does not prevent the reading of the evidence in the proceeding if the evidence has otherwise been taken in accordance with the order and with this section. R.S.O. 1990, c. P.33, s. 43 (3); 2006, c. 21, Sched. C, s. 131 (6). Application of rules in civil cases (4) Except as otherwise provided by this section or by the rules of court, the practice and procedure in connection with the appointment of commissioners under this section, the taking of evidence by commissioners, the certifying and return thereof, and the use of the evidence in the proceeding shall, as far as possible, be the same as those that govern like matters in civil proceedings in the Superior Court of Justice. R.S.O. 1990, c. P.33, s. 43 (4); 2000, c. 26, Sched. A, s. 13 (5). Trial of issue as to capacity to conduct defence 44. (1) Where at any time before a defendant is sentenced a court has reason to believe, based on, (a) the evidence of a legally qualified medical practitioner or, with the consent of the parties, a written report of a legally qualified medical practitioner; or (b) the conduct of the defendant in the courtroom, that the defendant suffers from mental disorder, the court may, (c) where the justice presiding is a judge, by order suspend the proceeding and direct the trial of the issue as to whether the defendant is, because of mental disorder, unable to conduct his or her defence; or (d) where the justice presiding is a justice of the peace, refer the matter to a judge who may make an order referred to in clause (c). Examination (2) For the purposes of subsection (1), the court may order the defendant to attend to be examined under subsection (5). Finding (3) The trial of the issue shall be presided over by a judge and, (a) where the judge finds that the defendant is, because of mental disorder, unable to conduct his or her defence, the judge shall order that the proceeding remain suspended; (b) where the judge finds that the defendant is able to conduct his or her defence, the judge shall order that the suspended proceeding be continued. Application for rehearing as to capacity (4) At any time within one year after an order is made under subsection (3), either party may, upon seven days notice to the other, make a motion to a judge to rehear the trial of the issue and where upon the rehearing the judge finds that the defendant is able to conduct his or her defence, the judge may order that the suspended proceeding be continued. R.S.O. 1990, c. P.33, s. 44 (1-4). Order for examination (5) For the purposes of subsection (1) or a hearing or rehearing under subsection (3) or (4), the court or judge may order the defendant to attend at such place or before such person and at or within such time as are specified in the order and submit to an examination for the purpose of determining whether the defendant is, because of mental disorder, unable to conduct his or her defence. R.S.O. 1990, c. P.33, s. 44 (5); 1993, c. 27, Sched. Idem (6) Where the defendant fails or refuses to comply with an order under subsection (5) without reasonable excuse or where the person conducting the examination satisfies a judge that it is necessary to do so, the judge may by warrant direct that the defendant be taken into such custody as is necessary for the purpose of the examination and in any event for not longer than seven days and, where it is necessary to detain the defendant in a place, the place shall be, where practicable, a psychiatric facility. Limitation on suspension of proceeding (7) Where an order is made under subsection (3) and one year has elapsed and no further order is made under subsection (4), no further proceeding shall be taken in respect of the charge or any other charge arising out of the same circumstance. R.S.O. 1990, c. P.33, s. 44 (6, 7). Taking of plea 45. (1) After being informed of the substance of the information or certificate, the defendant shall be asked whether the defendant pleads guilty or not guilty of the offence charged in it. 2009, c. 33, Sched. 4, s. 1 (37). Conviction on plea of guilty (2) Where the defendant pleads guilty, the court may accept the plea and convict the defendant. 2009, c. 33, Sched. 4, s. 1 (37). Conditions of accepting plea (3) A court may accept a plea of guilty only if it is satisfied that the defendant, (a) is making the plea voluntarily; (b) understands that the plea is an admission of the essential elements of the offence; (c) understands the nature and consequences of the plea; and (d) understands that the court is not bound by any agreement made between the defendant and the prosecutor. 2009, c. 33, Sched. 4, s. 1 (37). Validity of plea not affected (4) The failure of a court to fully inquire into whether the conditions set out in subsection (3) are met does not affect the validity of the plea. 2009, c. 33, Sched. 4, s. 1 (37). Refusal to plead (5) Where the defendant refuses to plead or does not answer directly, the court shall enter a plea of not guilty. 2009, c. 33, Sched. 4, s. 1 (37). Plea of guilty to another offence (6) Where the defendant pleads guilty of an offence other than the offence charged, and whether or not it is an included offence and whether or not the defendant has pleaded not guilty to the offence charged, the court may, with the consent of the prosecutor, accept such plea of guilty and accordingly amend the certificate of offence, the certificate of parking infraction or the information, as the case may be, or substitute the offence to which the defendant pleads guilty. 2009, c. 33, Sched. 4, s. 1 (37). Judicial pre-trial conferences 45.1 (1) On application by the prosecutor or the defendant or on his or her own motion, a justice may order that a pre-trial conference be held between the prosecutor and the defendant or a representative of the defendant. 2009, c. 33, Sched. 4, s. 1 (38). Matters for consideration (2) The court, or a justice of the court, shall preside over the pre-trial conference, the purpose of which is to, (a) consider the matters that, to promote a fair and expeditious trial, would be better decided before the start of the proceedings and other similar matters; and (b) make arrangements for decisions on those matters. 2009, c. 33, Sched. 4, s. 1 (38). Trial on plea of not guilty 46. (1) If the defendant pleads not guilty, the court shall hold the trial. 2009, c. 33, Sched. 4, s. 1 (39). Right to defend (2) The defendant is entitled to make full answer and defence. R.S.O. 1990, c. P.33, s. 46 (2). Right to examine witnesses (3) The prosecutor or defendant, as the case may be, may examine and cross-examine witnesses. R.S.O. 1990, c. P.33, s. 46 (3). Agreed facts (4) The court may receive and act upon any facts agreed upon by the defendant and prosecutor without proof or evidence. R.S.O. 1990, c. P.33, s. 46 (4). Defendant not compellable (5) Despite section 8 of the Evidence Act, the defendant is not a compellable witness for the prosecution. R.S.O. 1990, c. P.33, s. 46 (5). Evidence and burden of proof Evidence taken on another charge 47. (1) The court may receive and consider evidence taken before the same justice on a different charge against the same defendant, with the consent of the parties. R.S.O. 1990, c. P.33, s. 47 (1). Certificate as evidence (2) Where a certificate as to the content of an official record is, by any Act, made admissible in evidence as proof, in the absence of evidence to the contrary, the court may, for the purpose of deciding whether the defendant is the person referred to in the certificate, receive and base its decision upon information it considers credible or trustworthy in the circumstances of each case. R.S.O. 1990, c. P.33, s. 47 (2); 1993, c. 27, Sched. Burden of proving exception, etc. (3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information. R.S.O. 1990, c. P.33, s. 47 (3). Exhibits 48. (1) The court may order that an exhibit be kept in such custody and place as, in the opinion of the court, is appropriate for its preservation. Release of exhibits (2) Where any thing is filed as an exhibit in a proceeding, the clerk may release the exhibit upon the consent of the parties at any time after the trial or, in the absence of consent, may return the exhibit to the party tendering it after the disposition of any appeal in the proceeding or, where an appeal is not taken, after the expiration of the time for appeal. R.S.O. 1990, c. P.33, s. 48. Certificate evidence 48.1 (1) The certified statements in a certificate of offence or certificate of parking infraction are admissible in evidence as proof, in the absence of evidence to the contrary, of the facts stated therein. 1993, c. 31, s. 1 (22). Exception (2) Subsection (1) does not apply if the defendant has indicated under section 5.2, subsection 11 (3), section 18.1.2 or subsection 19 (3) that the defendant intends to challenge the evidence of the provincial offences officer who completed the certificate. 1993, c. 31, s. 1 (22). Note: On a day to be named by proclamation of the Lieutenant Governor, section 48.1 is repealed and the following substituted: Certified evidence Application 48.1 (1) This section applies to a hearing, including a hearing in the absence of a defendant under section 54, where, (a) the proceeding for the offence was commenced by certificate under Part I or II; and (b) the offence is specified by the regulations. 2009, c. 33, Sched. 4, s. 1 (40). Admissibility of certified evidence (2) The following are admissible in evidence as proof of the facts certified in it, in the absence of evidence to the contrary: 1. A certified statement in a certificate of offence. 2. A certified statement in a certificate of parking infraction. 3. Other types of certified evidence specified by the regulations. 2009, c. 33, Sched. 4, s. 1 (40). Other provisions on admissibility (3) For greater certainty, subsection (2) does not affect or interfere with the operation of a provision of this Act or any other Act that permits or specifies that a document or type of document be admitted into evidence as proof of the facts certified in it. 2009, c. 33, Sched. 4, s. 1 (40). Onus (4) For greater certainty, this section does not remove the onus on the prosecution to prove its case beyond a reasonable doubt. 2009, c. 33, Sched. 4, s. 1 (40). No oral evidence (5) A provincial offences officer who provides certified evidence referred to in subsection (2) in respect of a proceeding shall not be required to attend to give evidence at trial, except as provided under subsection 49 (4). 2009, c. 33, Sched. 4, s. 1 (40). Regulations (6) The Lieutenant Governor in Council may make regulations, (a) specifying offences for the purposes of clause (1) (b); (b) respecting other types of certified evidence for the purposes of paragraph 3 of subsection (2); (c) respecting restrictions or conditions on the admissibility of evidence under subsection (2). 2009, c. 33, Sched. 4, s. 1 (40). See: 2009, c. 33, Sched. 4, ss. 1 (40), 5 (4). Adjournments 49. (1)The court may, from time to time, adjourn a trial or hearing but, where the defendant is in custody, an adjournment shall not be for a period longer than eight days without the consent of the defendant. R.S.O. 1990, c. P.33, s. 49 (1). Early resumption (2) A trial or hearing that is adjourned for a period may be resumed before the expiration of the period with the consent of the defendant and the prosecutor. R.S.O. 1990, c. P.33, s. 49 (2). Adjournment (3) Despite subsection (1), if the trial is being held in respect of a proceeding commenced under Part I or II, the court shall not adjourn the trial for the purpose of having the provincial offences officer who completed the certificate attend to give evidence unless the court is satisfied that the interests of justice require it. 1993, c. 31, s. 1 (23). Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (3) is repealed and the following substituted: Adjournment (3) Despite subsection (1) and subject to subsection (4), if the trial is being held in respect of a proceeding commenced under Part I or II, the court shall not adjourn the trial for the purpose of having the provincial offences officer who completed the certificate of offence or the certificate of parking infraction, as the case may be, attend to give evidence unless the court is satisfied that the interests of justice require it. 2009, c. 33, Sched. 4, s. 1 (41). Adjournment where certified evidence (4) If certified evidence referred to in subsection 48.1 (2) is being admitted as evidence in a trial referred to in subsection (1), the court shall not adjourn the trial for the purpose of having any of the following persons attend to give evidence unless the court is satisfied that the oral evidence of the person is necessary in order to ensure a fair trial: 1. The provincial offences officer who completed the certificate of offence or the certificate of parking infraction, as the case may be. 2. Any provincial offences officer who provided certified evidence in respect of the proceeding. 2009, c. 33, Sched. 4, s. 1 (41). See: 2009, c. 33, Sched. 4, ss. 1 (41), 5 (4). Power of clerk to adjourn (5) The clerk of the court may, on behalf of the court, adjourn, (a) the first trial date for a proceeding commenced under Part I or Part II to a date agreed to by the defendant and the prosecutor in a written agreement filed with the court; and (b) any proceeding under this Act or any step in a proceeding under this Act, where no justice is able to attend in person, to a date chosen in accordance with the instructions of a justice. 2009, c. 33, Sched. 4, s. 1 (42). Appearance by defendant 50. (1) A defendant may appear and act personally or by representative. R.S.O. 1990, c. P.33, s. 50 (1); 2006, c. 21, Sched. C, s. 131 (7). Appearance by corporation (2) A defendant that is a corporation shall appear and act by representative. R.S.O. 1990, c. P.33, s. 50 (2); 2006, c. 21, Sched. C, s. 131 (7). Exclusion of representatives (3) The court may bar any person, other than a person who is licensed under the Law Society Act, from appearing as a representative if the court finds that the person is not competent properly to represent or advise the person for whom he or she appears, or does not understand and comply with the duties and responsibilities of a representative. 2006, c. 21, Sched. C, s. 131 (8). Compelling attendance of defendant 51. Although a defendant appears by representative, the court may order the defendant to attend personally, and, where it appears to be necessary to do so, may issue a summons in the prescribed form. R.S.O. 1990, c. P.33, s. 51; 2006, c. 21, Sched. C, s. 131 (9). Restrictions on hearing and publication Excluding defendant from hearing 52. (1) The court may cause the defendant to be removed and to be kept out of court, (a) when the defendant misconducts himself or herself by interrupting the proceeding so that to continue in the presence of the defendant would not be feasible; or (b) where, during the trial of an issue as to whether the defendant is, because of mental disorder, unable to conduct his or her defence, the court is satisfied that failure to do so might have an adverse effect on the mental health of the defendant. Excluding public from hearing (2) The court may exclude the public or any member of the public from a hearing where, in the opinion of the court, it is necessary to do so, (a) for the maintenance of order in the courtroom; (b) to protect the reputation of a minor; or (c) to remove an influence that might affect the testimony of a witness. Prohibition of publication of evidence (3) Where the court considers it necessary to do so to protect the reputation of a minor, the court may make an order prohibiting the publication or broadcast of the identity of the minor or of the evidence or any part of the evidence taken at the hearing. R.S.O. 1990, c. P.33, s. 52. Failure of prosecutor to appear 53. (1) Where the defendant appears for a hearing and the prosecutor, having had due notice, does not appear, the court may dismiss the charge or may adjourn the hearing to another time upon such terms as it considers proper. Idem (2) Where the prosecutor does not appear at the time and place appointed for the resumption of an adjourned hearing under subsection (1), the court may dismiss the charge. Costs (3) Where a hearing is adjourned under subsection (1) or a charge is dismissed under subsection (2), the court may make an order under section 60 for the payment of costs. Written order of dismissal (4) Where a charge is dismissed under subsection (1) or (2), the court may, if requested by the defendant, draw up an order of dismissal stating the grounds therefor and shall give the defendant a certified copy of the order of dismissal which is, without further proof, a bar to any subsequent proceeding against the defendant in respect of the same cause. R.S.O. 1990, c. P.33, s. 53. Conviction in the absence of the defendant 54. (1) Where a defendant does not appear at the time and place appointed for a hearing and it is proved by the prosecutor, having been given a reasonable opportunity to do so, that a summons was served, a notice of trial was given under Part I or II, an undertaking to appear was given or a recognizance to appear was entered into, as the case may be, or where the defendant does not appear upon the resumption of a hearing that has been adjourned, the court may, (a) proceed to hear and determine the proceeding in the absence of the defendant; or (b) adjourn the hearing and, if it thinks fit, issue a summons to appear or issue a warrant in the prescribed form for the arrest of the defendant. 2009, c. 33, Sched. 4, s. 1 (43). Proceeding arising from failure to appear (2) Where the court proceeds under clause (1) (a) or adjourns the hearing under clause (1) (b) without issuing a summons or warrant, no proceeding arising out of the failure of the defendant to appear at the time and place appointed for the hearing or for the resumption of the hearing shall be instituted, or if instituted shall be proceeded with, except with the consent of the Attorney General or his or her agent. 2009, c. 33, Sched. 4, s. 1 (43). Included offences 55. Where the offence as charged includes another offence, the defendant may be convicted of an offence so included that is proved, although the whole offence charged is not proved. R.S.O. 1990, c. P.33, s. 55. 4 }. `. y) F7 [. ^# W4 S" G
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Pre-sentence report 56. (1) Where a defendant is convicted of an offence in a proceeding commenced by information, the court may direct a probation officer to prepare and file with the court a report in writing relating to the defendant for the purpose of assisting the court in imposing sentence. R.S.O. 1990, c. P.33, s. 56 (1). Service (2) Where a report is filed with the court under subsection (1), the clerk of the court shall cause a copy of the report to be provided to the defendant or the defendant’s representative and to the prosecutor. R.S.O. 1990, c. P.33, s. 56 (2); 2006, c. 21, Sched. C, s. 131 (11). Other information relevant to sentence Submissions as to sentence 57. (1) Where a defendant who appears is convicted of an offence, the court shall give the prosecutor and the defendant’s representative an opportunity to make submissions as to sentence and, where the defendant has no representative, the court shall ask the defendant if he or she has anything to say before sentence is passed. 2006, c. 21, Sched. C, s. 131 (12). Omission to comply (2) The omission to comply with subsection (1) does not affect the validity of the proceeding. R.S.O. 1990, c. P.33, s. 57 (2). Inquiries by court (3) Where a defendant is convicted of an offence, the court may make such inquiries, on oath or otherwise, of and concerning the defendant as it considers desirable, including the defendant’s economic circumstances, but the defendant shall not be compelled to answer. R.S.O. 1990, c. P.33, s. 57 (3). Proof of previous conviction (4) A certificate setting out with reasonable particularity the finding of guilt or acquittal or conviction and sentence in Canada of a person signed by, (a) the person who made the adjudication; or (b) the clerk of the court where the adjudication was made, is, upon the court being satisfied that the defendant is the person referred to in the certificate, admissible in evidence and is proof, in the absence of evidence to the contrary, of the facts stated therein without proof of the signature or the official character of the person appearing to have signed the certificate. R.S.O. 1990, c. P.33, s. 57 (4); 1993, c. 27, Sched. Time spent in custody considered 58. In determining the sentence to be imposed on a person convicted of an offence, the justice may take into account any time spent in custody by the person as a result of the offence. R.S.O. 1990, c. P.33, s. 58. Provision for minimum penalty 59. (1) No penalty prescribed for an offence is a minimum penalty unless it is specifically declared to be a minimum. Relief against minimum fine (2) Although the provision that creates the penalty for an offence prescribes a minimum fine, where in the opinion of the court exceptional circumstances exist so that to impose the minimum fine would be unduly oppressive or otherwise not in the interests of justice, the court may impose a fine that is less than the minimum or suspend the sentence. Idem, re imprisonment (3) Where a minimum penalty is prescribed for an offence and the minimum penalty includes imprisonment, the court may, despite the prescribed penalty, impose a fine of not more than $5,000 in lieu of imprisonment. R.S.O. 1990, c. P.33, s. 59. Costs Fixed costs on conviction 60. (1) Upon conviction, the defendant is liable to pay to the court an amount by way of costs that is fixed by the regulations. Costs respecting witnesses (2) The court may, in its discretion, order costs towards fees and expenses reasonably incurred by or on behalf of witnesses in amounts not exceeding the maximum fixed by the regulations, to be paid, (a) to the court or prosecutor by the defendant; or (b) to the defendant by the person who laid the information or issued the certificate, as the case may be, but where the proceeding is commenced by means of a certificate, the total of such costs shall not exceed $100. Costs collectable as a fine (3) Costs payable under this section shall be deemed to be a fine for the purpose of enforcing payment. R.S.O. 1990, c. P.33, s. 60. Surcharge 60.1 (1) If a person is convicted of an offence in a proceeding commenced under Part I or III and a fine is imposed in respect of that offence, a surcharge is payable by that person in the amount determined by regulations made under this Act. Collection (2) The surcharge shall be deemed to be a fine for the purpose of enforcing payment. Priorities (3) Any payments made by a defendant shall be credited towards payment of the fine until it is fully paid and then towards payment of the surcharge. 1994, c. 17, s. 130. Part X agreements (3.1) When an agreement made under Part X applies to a fine, payments made by the defendant shall first be credited towards payment of the surcharge, not as described in subsection (3). 1998, c. 4, s. 1 (1). Special purpose account (4) Surcharges paid into the Consolidated Revenue Fund shall be credited to the victims’ justice fund account and shall be deemed to be money received by the Crown for a special purpose. 1994, c. 17, s. 130; 1995, c. 6, s. 7 (1). Same (4.1) Subsection (4) also applies to payments received under clause 165 (5) (a). 1998, c. 4, s. 1 (1). (5), (6) Repealed: 1995, c. 6, s. 7 (2). Regulations (7) The Lieutenant Governor in Council may make regulations, (a) prescribing the amount of the surcharges or the method by which they are to be calculated; (b) Repealed: 1995, c. 6, s. 7 (2). (c) exempting any offence or class of offence from the application of subsection (1). 1994, c. 17, s. 130; 1995, c. 6, s. 7 (2). (8) Repealed: 1995, c. 6, s. 7 (2). General penalty 61. Except where otherwise expressly provided by law, every person who is convicted of an offence is liable to a fine of not more than $5,000. R.S.O. 1990, c. P.33, s. 61. Minute of conviction 62. Where a court convicts a defendant or dismisses a charge, a minute of the dismissal or conviction and sentence shall be made by the court, and, upon request by the defendant or the prosecutor or by the Attorney General or his or her agent, the court shall cause a copy thereof certified by the clerk of the court to be delivered to the person making the request. R.S.O. 1990, c. P.33, s. 62; 2006, c. 21, Sched. C, s. 131 (13). Time when imprisonment starts 63. (1) The term of imprisonment imposed by sentence shall, unless otherwise directed in the sentence, commence on the day on which the convicted person is taken into custody thereunder, but no time during which the convicted person is imprisoned or out on bail before sentence shall be reckoned as part of the term of imprisonment to which he or she is sentenced. Idem (2) Where the court imposes imprisonment, the court may order custody to commence on a day not later than thirty days after the day of sentencing. R.S.O. 1990, c. P.33, s. 63. Sentences consecutive 64. Where a person is subject to more than one term of imprisonment at the same time, the terms shall be served consecutively except in so far as the court has ordered a term to be served concurrently with any other term of imprisonment. R.S.O. 1990, c. P.33, s. 64. Warrant of committal 65. (1) A warrant of committal is sufficient authority, (a) for the conveyance of the prisoner in custody for the purpose of committal under the warrant; and (b) for the reception and detention of the prisoner by keepers of prisons in accordance with the terms of the warrant. Conveyance of prisoner (2) A person to whom a warrant of committal is directed shall convey the prisoner to the correctional institution named in the warrant. Prisoner subject to rules of institution (3) A sentence of imprisonment shall be served in accordance with the enactments and rules that govern the institution to which the prisoner is sentenced. R.S.O. 1990, c. P.33, s. 65. When fine due 66. (1) A fine becomes due and payable fifteen days after its imposition. Extension of time for payment of a fine (2) Where the court imposes a fine, the court shall ask the defendant if the defendant wishes an extension of the time for payment of the fine. Inquiries (3) Where the defendant requests an extension of the time for payment of the fine, the court may make such inquiries, on oath or affirmation or otherwise, of and concerning the defendant as the court considers desirable, but the defendant shall not be compelled to answer. Granting of extension (4) Unless the court finds that the request for extension of time is not made in good faith or that the extension would likely be used to evade payment, the court shall extend the time for payment by ordering periodic payments or otherwise. Notice where convicted in the absence of the defendant (5) Where a fine is imposed in the absence of the defendant, the clerk of the court shall give the defendant notice of the fine and its due date and of the defendant’s right to make a motion for an extension of the time for payment under subsection (6). Further motion for extension (6) The defendant may, at any time by motion in the prescribed form filed in the office of the court, request an extension or further extension of time for payment of a fine and the motion shall be determined by a justice and the justice has the same powers in respect of the motion as the court has under subsections (3) and (4). R.S.O. 1990, c. P.33, s. 66. Defendant’s address 66.1 If a court imposes a fine, grants an extension of time for payment of a fine or deals with a fine under section 69, and the defendant is before the court, the court shall require the defendant to provide the defendant’s current address to the clerk of the court. 1993, c. 31, s. 1 (24). Fee for refused cheque collectable as a fine 66.2 When a person purports to pay a fine by a cheque that the drawee of the cheque refuses to cash and thereby becomes liable to pay a fee in the amount prescribed for the purpose of section 8.1 of the Financial Administration Act, the fee shall be deemed to be a fine for the purpose of enforcing payment. 1994, c. 27, s. 52 (5). Regulation for work credits for fines 67. The Lieutenant Governor in Council may make regulations establishing a program to permit the payment of fines by means of credits for work performed, and, for the purpose and without restricting the generality of the foregoing may, (a) prescribe classes of work and the conditions under which they are to be performed; (b) prescribe a system of credits; (c) provide for any matter necessary for the effective administration of the program, and any regulation may limit its application to any part or parts of Ontario. R.S.O. 1990, c. P.33, s. 67. Civil enforcement of fines 68. (1) When the payment of a fine is in default, the clerk of the court may complete a certificate in the prescribed form as to the imposition of the fine and the amount remaining unpaid and file the certificate in a court of competent jurisdiction and upon filing, the certificate shall be deemed to be an order or judgment of that court for the purposes of enforcement. R.S.O. 1990, c. P.33, s. 68 (1). (2) Repealed: 2009, c. 33, Sched. 4, s. 1 (44). Certificate of discharge (3) Where a certificate has been filed under subsection (1) and the fine is fully paid, the clerk shall file a certificate of payment upon which the certificate of default is discharged and, where a writ of execution has been filed with the sheriff, the clerk shall file a certificate of payment with the sheriff, upon which the writ is cancelled. R.S.O. 1990, c. P.33, s. 68 (3). Costs of enforcement (4) Costs incurred in enforcing the deemed court order or judgment shall be added to the order or judgment and form part of it. 1993, c. 31, s. 1 (25). More than one fine (5) The clerk may complete and file one certificate under this section in respect of two or more fines imposed on the same person. 1994, c. 27, s. 52 (6). Default 69. (1) The payment of a fine is in default if any part of it is due and unpaid for fifteen days or more. 1993, c. 31, s. 1 (26). Order on default (2) A justice of the peace who is satisfied that payment of a fine is in default, (a) shall order that any permit, licence, registration or privilege in respect of which a suspension is authorized under any Act because of non-payment of the fine be suspended until the fine is paid; (b) shall order that any permit, licence, registration or privilege in respect of which any Act authorizes a refusal to renew, validate or issue the permit, licence, registration or privilege because of non-payment of the fine not be renewed, validated or issued until the fine is paid; and (c) may direct the clerk of the court to proceed with civil enforcement under section 68. 1993, c. 31, s. 1 (26). Highway Traffic Act permits (3) If section 7 of the Highway Traffic Act authorizes an order or direction under this section that any permit under that Act not be validated or issued because payment of a fine is in default, a person designated by the regulations who is satisfied that payment of a fine is in default shall direct that until the fine is paid, (a) validation of any permit held by the person who has defaulted be refused; and (b) issuance of any permit to the person who has defaulted be refused. 2004, c. 22, s. 8. Restriction (4) If a person holds more than one permit and a direction in respect of that person is made under clause (3) (a), the direction shall not apply so as to prevent validation of any permit in respect of which the numbered plate evidencing validation of the permit had not been displayed on the vehicle involved in the infraction. 1993, c. 31, s. 1 (26). Highway Traffic Act licences (5) If section 46 of the Highway Traffic Act authorizes an order or direction under this section that any licence under that Act be suspended or not be issued because payment of a fine is in default, a person designated by the regulations who is satisfied that payment of a fine is in default shall direct that until the fine is paid, (a) if the person who has defaulted holds a licence, the licence be suspended; or (b) if the person who has defaulted does not hold a licence, no licence be issued to him or her. 1993, c. 31, s. 1 (26). Obtaining convicted person’s attendance (6) A justice may issue a warrant requiring that a person who has defaulted be arrested and brought before a justice as soon as possible if other reasonable methods of collecting the fine have been tried and have failed, or would not appear to be likely to result in payment within a reasonable period of time. 1993, c. 31, s. 1 (26). Alternative summons procedure (7) The clerk of the court that imposed the fine that is in default may issue a summons requiring the person who has defaulted to appear before a justice if the conditions described in subsection (6) exist. 1993, c. 31, s. 1 (26). Service of summons (8) The summons referred to in subsection (7) may be served by regular prepaid mail. 1993, c. 31, s. 1 (26). Hearing (9) If a person who has defaulted in paying a fine is brought before a justice as a result of a warrant issued under subsection (6) or such a person appears before a justice as a result of a summons issued under subsection (7), the justice shall hold a hearing to determine whether the person is unable to pay the fine within a reasonable period of time. 1993, c. 31, s. 1 (26). Onus (10) In a hearing under subsection (9), the onus of proving that the person is unable to pay the fine within a reasonable period of time is on the person who has defaulted. 1993, c. 31, s. 1 (26). Adjournment (11) The justice may adjourn the hearing from time to time at the request of the person who has defaulted. 1993, c. 31, s. 1 (26). Warning (12) When an adjournment is granted, the justice shall warn the person who has defaulted that if the person fails to appear for the resumption of the hearing, the hearing may proceed in the person’s absence. 1993, c. 31, s. 1 (26). Failure to warn (13) If a hearing was adjourned and the person who has defaulted does not appear when it is resumed, the hearing may proceed in the person’s absence even if the warning required by subsection (12) was not given. 1993, c. 31, s. 1 (26). Warrant of committal (14) If the justice is not satisfied that the person who has defaulted is unable to pay the fine within a reasonable period of time and that incarceration of the person would not be contrary to the public interest, the justice may issue a warrant for the person’s committal or may order that such other steps be taken to enforce the fine as appear to him or her to be appropriate. 1993, c. 31, s. 1 (26). Note: On a day to be named by proclamation of the Lieutenant Governor, section 69 is amended by adding the following subsection: Inability to pay (14.1) Despite subsection 165 (3), a defendant may, in accordance with the regulations, apply to a justice to reduce or expunge a defaulted fine under subsection (15) where the defendant meets the criteria for inability to pay defined in the regulations. 2009, c. 33, Sched. 4, s. 1 (45). See: 2009, c. 33, Sched. 4, ss. 1 (45), 5 (4). Inability to pay fine (15) If the justice is satisfied that the person who has defaulted is unable to pay the fine within a reasonable period of time, the justice may, (a) grant an extension of the time allowed for payment of the fine; (b) require the person to pay the fine according to a schedule of payments established by the justice; (c) in exceptional circumstances, reduce the amount of the fine or order that the fine does not have to be paid. 1993, c. 31, s. 1 (26). Term of imprisonment (16) Subject to subsection (17), the term of imprisonment under a warrant issued under subsection (14) shall be for three days, plus, (a) if the amount that has not been paid is not greater than $50, one day; or (b) if the amount that has not been paid is greater than $50, a number of days equal to the sum of one plus the number obtained when the unpaid amount is divided by $50, rounded down to the nearest whole number. 1993, c. 31, s. 1 (26). Limit (17) The term of imprisonment shall not exceed the greater of, (a) ninety days; and (b) half of the maximum number of days of imprisonment that may be imposed on conviction of the offence that the person who has defaulted was convicted of. 1993, c. 31, s. 1 (26). Effect of payments (18) Subject to subsection (19), a payment in respect of the fine in default that is made after a warrant is issued under subsection (14) shall result in a reduction of the term of imprisonment by the number of days that is in the same proportion to the term as the payment is to the amount in default. 1993, c. 31, s. 1 (26). Restriction (19) A payment that is less than the amount outstanding on the fine shall not result in a reduction of the term of imprisonment unless it is an amount that would reduce the term by a number of days that is a whole number. 1993, c. 31, s. 1 (26). Exceptions (20) Subsections (6) to (19) do not apply if, (a) the person who has defaulted is less than eighteen years old; or (b) the fine was imposed on conviction of an offence under subsection 31 (2) or (4) of the Liquor Licence Act. 1993, c. 31, s. 1 (26). Exceptional circumstances (21) In exceptional circumstances where, in the opinion of the court that imposed the fine, to proceed under subsections (6) to (14) would defeat the ends of justice, the court may order that no warrant be issued under subsection (6) and that no summons be issued under subsection (7). 1993, c. 31, s. 1 (26). Regulations (22) The Lieutenant Governor in Council may make regulations, (a) designating a person or class of persons for purposes of subsections (3) and (5); Note: On a day to be named by proclamation of the Lieutenant Governor, subsection (22) is amended by adding the following clause: (a.1) prescribing the form and procedure for an application under subsection (14.1); See: 2009, c. 33, Sched. 4, ss. 1 (46), 5 (4). (b) prescribing criteria to be considered by a justice in determining whether a person is unable to pay a fine within a reasonable period of time. 1993, c. 31, s. 1 (26). Disclosure to consumer reporting agency 69.1 (1) When a fine has been in default for at least 90 days, the Ministry of the Attorney General may disclose to a consumer reporting agency the name of the defaulter, the amount of the fine and the date the fine went into default. Same (2) When a fine disclosed to a consumer reporting agency has been paid in full, the Ministry of the Attorney General shall inform the agency of this fact as soon as possible after payment. 1994, c. 17, s. 131. Fee where fine in default 70. (1) Where the payment of a fine is in default and the time for payment is not extended or further extended under subsection 66 (6), the defendant shall pay the administrative fee prescribed by the regulations. Fee collectable as a fine (2) For the purpose of making and enforcing payment, a fee payable under this section shall be deemed to be part of the fine that is in default. R.S.O. 1990, c. P.33, s. 70. Suspension of fine on conditions 71. Where an Act provides that a fine may be suspended subject to the performance of a condition, (a) the period of suspension shall be fixed by the court and shall be for not more than one year; (b) the court shall provide in its order of suspension the method of proving the performance of the condition; (c) the suspension is in addition to and not in lieu of any other power of the court in respect of the fine; and (d) the fine is not in default until fifteen days have elapsed after notice that the period of suspension has expired is given to the defendant. R.S.O. 1990, c. P.33, s. 71; 1993, c. 27, Sched. Probation order 72. (1) Where a defendant is convicted of an offence in a proceeding commenced by information, the court may, having regard to the age, character and background of the defendant, the nature of the offence and the circumstances surrounding its commission, (a) suspend the passing of sentence and direct that the defendant comply with the conditions prescribed in a probation order; (b) in addition to fining the defendant or sentencing the defendant to imprisonment, whether in default of payment of a fine or otherwise, direct that the defendant comply with the conditions prescribed in a probation order; or (c) where it imposes a sentence of imprisonment on the defendant, whether in default of payment of a fine or otherwise, that does not exceed ninety days, order that the sentence be served intermittently at such times as are specified in the order and direct that the defendant, at all times when he or she is not in confinement pursuant to such order, comply with the conditions prescribed in a probation order. Statutory conditions of order (2) A probation order shall be deemed to contain the conditions that, (a) the defendant not commit the same or any related or similar offence, or any offence under a statute of Canada or Ontario or any other province of Canada that is punishable by imprisonment; (b) the defendant appear before the court as and when required; and (c) the defendant notify the court of any change in the defendant’s address. Conditions imposed by court (3) In addition to the conditions set out in subsection (2), the court may prescribe as a condition in a probation order, (a) that the defendant satisfy any compensation or restitution that is required or authorized by an Act; (b) with the consent of the defendant and where the conviction is of an offence that is punishable by imprisonment, that the defendant perform a community service as set out in the order; (c) where the conviction is of an offence punishable by imprisonment, such other conditions relating to the circumstances of the offence and of the defendant that contributed to the commission of the offence as the court considers appropriate to prevent similar unlawful conduct or to contribute to the rehabilitation of the defendant; or (d) where considered necessary for the purpose of implementing the conditions of the probation order, that the defendant report to a responsible person designated by the court and, in addition, where the circumstances warrant it, that the defendant be under the supervision of the person to whom he or she is required to report. Form of order (4) A probation order shall be in the prescribed form and the court shall specify therein the period for which it is to remain in force, which shall not be for more than two years from the date when the order takes effect. Notice of order (5) Where the court makes a probation order, it shall cause a copy of the order and a copy of section 75 to be given to the defendant. Regulations for community service orders (6) The Lieutenant Governor in Council may make regulations governing restitution, compensation and community service orders, including their terms and conditions. R.S.O. 1990, c. P.33, s. 72. Exception (7) The court shall not make a probation order when an individual has been convicted of an absolute liability offence, unless the order is made in addition to a sentence of imprisonment imposed under section 69 in default of payment of a fine. 1994, c. 27, s. 52 (7). When order comes into force 73. (1) A probation order comes into force, (a) on the date on which the order is made; or (b) where the defendant is sentenced to imprisonment other than a sentence to be served intermittently, upon the expiration of that sentence. Continuation in force (2) Subject to section 75, where a defendant who is bound by a probation order is convicted of an offence or is imprisoned in default of payment of a fine, the order continues in force except in so far as the sentence or imprisonment renders it impossible for the defendant to comply for the time being with the order. R.S.O. 1990, c. P.33, s. 73. Variation of probation order 74. The court may, at any time upon the application of the defendant or prosecutor with notice to the other, after a hearing or, with the consent of the parties, without a hearing, (a) make any changes in or additions to the conditions prescribed in the order that in the opinion of the court are rendered desirable by a change in circumstances; (b) relieve the defendant, either absolutely or upon such terms or for such period as the court considers desirable, of compliance with any condition described in any of the clauses in subsection 72 (3) that is prescribed in the order; or (c) terminate the order or 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 or adds to the conditions prescribed in the order, inform the defendant of its action and give the defendant a copy of the order so endorsed. R.S.O. 1990, c. P.33, s. 74. Breach of probation order 75. Where a defendant who is bound by a probation order is convicted of an offence constituting a breach of condition of the order and, (a) the time within which the defendant may appeal or make a motion for leave to appeal against that conviction has expired and the defendant has not taken an appeal or made a motion for leave to appeal; (b) the defendant has taken an appeal or made a motion for leave to appeal against the conviction and the appeal or motion for leave has been dismissed or abandoned; or (c) the defendant has given written notice to the court that convicted the defendant that the defendant elects not to appeal, or where the defendant otherwise wilfully fails or refuses to comply with the order, the defendant is guilty of an offence and upon conviction the court may, (d) impose a fine of not more than $1,000 or imprisonment for a term of not more than thirty days, or both, and in lieu of or in addition to the penalty, continue the probation order with such changes or additions and for such extended term, not exceeding an additional year, as the court considers reasonable; or (e) where the justice presiding is the justice who made the original order, in lieu of imposing the penalty under clause (d), revoke the probation order and impose the sentence the passing of which was suspended upon the making of the probation order. R.S.O. 1990, c. P.33, s. 75. | 
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