Sentencing in Canada is not always limited to a single main penalty, such as a fine or a period of custody. A court can also impose ancillary orders, which are additional court orders connected to the offence and imposed alongside the main sentence. This page surveys the most common ancillary orders in Ontario criminal cases: DNA data bank orders, weapons prohibition orders, orders under the Sex Offender Information Registration Act, and non-communication orders. It is general legal information only, not legal advice, and does not suggest that any specific ancillary order applies to a particular case.
Whether a specific ancillary order is available, mandatory, or discretionary depends entirely on the offence and the facts involved. A lawyer reviewing a specific charge can explain which ancillary orders may be in play and how to respond to them.
What Are Ancillary Orders?
Ancillary orders are court orders made in connection with a sentence, in addition to the main penalty. Some are mandatory for certain offences, meaning a court has no discretion to withhold them once a conviction is entered, while others are discretionary, requiring the court to be satisfied that making the order is appropriate in the circumstances. Which orders apply, and whether they are mandatory or discretionary, depends on the specific offence.
Ancillary orders generally do not replace the main sentence; they operate alongside it, and can continue to apply for a period that is entirely separate from the length of any custodial sentence, fine, or period of probation imposed. An offender can find themselves subject to obligations such as reporting requirements or a weapons prohibition long after the main sentence has been served or completed, which is why understanding which ancillary orders apply to a specific offence matters well beyond the sentencing hearing itself.
DNA Data Bank Orders
Under section 487.051 of the Criminal Code, a court that convicts an offender of certain offences can order that bodily substances be taken from the offender for forensic DNA analysis, for inclusion in the national DNA data bank. Offences are grouped into primary designated offences, which are generally serious violent and sexual offences, and secondary designated offences, which cover a broader range of other offences.
For a primary designated offence, the court is generally required to make a DNA order unless the offender establishes that the impact on their privacy and security of the person would be grossly disproportionate to the public interest in protecting society through effective investigation of crime. For a secondary designated offence, the order is discretionary, and the Crown must satisfy the court that making it is in the best interests of the administration of justice.
Weapons Prohibition Orders
A weapons prohibition order made at sentencing is different from the weapons condition sometimes imposed as a condition of pre-trial release, which our page on weapons conditions on bail explains. A bail condition applies only while a person is released and awaiting trial, before any finding of guilt. A sentencing weapons prohibition order, by contrast, is imposed after conviction and can last for a defined period or indefinitely, depending on the offence.
Section 109 of the Criminal Code sets out mandatory weapons prohibition orders, which a court must impose on conviction for certain offences, including many offences involving violence or firearms. Section 110 sets out discretionary weapons prohibition orders, which a court may impose for a broader range of offences involving violence or certain weapons, where the court is satisfied it is desirable in the interests of the safety of the offender or of any other person. If a court declines to make a discretionary order under section 110, it must give reasons for declining to do so.
Do not confuse a sentencing weapons prohibition order with a bail-stage weapons condition. They arise under different provisions, at different stages of a case, and can have very different durations and consequences if breached.
SOIRA Orders
The Sex Offender Information Registration Act requires certain offenders to report specific personal information, kept in a national registry used by police. Section 490.012 of the Criminal Code makes a SOIRA order mandatory for offenders convicted of a designated sexual offence, subject to the specific provisions that apply based on how the offence was prosecuted and the sentence imposed. The duration of a SOIRA order, whether ten years, twenty years, or life, is generally tied to the maximum term of imprisonment for the offence, so that more serious designated offences carry longer reporting obligations.
Non-Communication Orders
Section 743.21 of the Criminal Code allows a sentencing judge to order that an offender not communicate, directly or indirectly, with a specified victim, witness, or other named person during the custodial part of their sentence, except in accordance with any conditions the order specifies. This order is aimed at protecting people connected to a case while an offender is serving a period of custody. Failing to comply with a non-communication order without a lawful excuse is itself an offence under the Criminal Code.
Because a non-communication order is tied to the custodial portion of a sentence, it is generally considered by the court at the same time as the main sentence, based on submissions about whether ongoing contact between the offender and a named person poses a genuine concern. Our page on victim impact statements discusses some of the related concerns victims can raise at sentencing more broadly.
Restitution and the Victim Surcharge
Two other outcomes discussed elsewhere on this site are also, technically, ancillary to the main sentence rather than a sentence on their own. Restitution requires an offender to compensate a victim for certain quantifiable losses, and the victim surcharge discussed on our fines page is an additional monetary amount that can apply on top of a fine or other sentence. Both are addressed in detail on their own pages rather than repeated here.
Frequently Asked Questions
What is an ancillary order?
An ancillary order is a court order made in connection with a sentence, in addition to the main penalty, such as a DNA order, a weapons prohibition, a SOIRA order, or a non-communication order.
Is a weapons prohibition order at sentencing the same as a bail condition?
No. A bail-stage weapons condition applies before trial, while a person is released pending their case. A sentencing weapons prohibition order under sections 109 or 110 is imposed after a conviction and can last much longer.
Are DNA orders mandatory?
For primary designated offences, a DNA order is generally mandatory unless the offender shows the impact would be grossly disproportionate to the public interest. For secondary designated offences, it is discretionary.
How long does a SOIRA order last?
The duration, generally ten years, twenty years, or life, depends on the maximum term of imprisonment for the designated sexual offence and the specific provisions that apply.
What happens if a non-communication order is breached?
Breaching a non-communication order made under section 743.21 without a lawful excuse is itself a criminal offence.
Are restitution and the victim surcharge ancillary orders too?
Yes, in the sense that they are additional to the main sentence. See our pages on restitution and fines for details on each.