Sentencing is often the part of a criminal case people think about most and understand least. Someone says, “You will get probation.” A cousin swears a first offender cannot go to jail. Neither statement is reliable, because Canadian sentencing is individual. There are basic rules, a menu of options, and then a judge who has to fit those to a real person and a real offence.
The vocabulary matters too. “Conditional discharge” and “conditional sentence” sound nearly the same but are very different things. One leaves you without a conviction. The other is a jail sentence served in the community. If you are about to plead guilty, or you have been found guilty, you should know the difference before you stand up at the Brampton courthouse at 7755 Hurontario St.
What you read here is meant as general information and cannot stand in for legal advice. Sentencing is tied closely to the specific offence, the facts, and the person involved, and the law in this area does change.
How a Judge Approaches Sentencing
Section 718 of the Criminal Code says the fundamental purpose of sentencing is to protect society and contribute to respect for the law and a just, peaceful and safe society. It lists six objectives: denouncing unlawful conduct, deterring the offender and others, separating offenders from society where necessary, assisting in rehabilitation, providing reparations, and promoting a sense of responsibility.
Section 718.1 sets out the fundamental principle: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Section 718.2 then adds other principles. Sentences are adjusted for aggravating and mitigating circumstances. Similar offenders in similar circumstances should receive similar sentences. A person should not be deprived of liberty if less restrictive sanctions would be appropriate. And all available sanctions other than imprisonment that are reasonable should be considered, particularly for Aboriginal offenders.
Common aggravating factors include abuse of an intimate partner or a child, abuse of a position of trust, offences motivated by hate, a significant impact on the victim, a relevant criminal record, and committing an offence while on a conditional sentence or other release. Mitigating factors can include an early guilty plea, real remorse, a clean record, employment, family responsibilities, steps taken toward treatment, and restitution paid before sentencing.
Consecutive or concurrent sentences, minimum penalties and special sentencing rules can all affect the result, and some of these rules have been tightened for repeat violent offending and certain other crimes. A lawyer can tell you which rules apply to your charge.
Absolute and Conditional Discharges
Under section 730, a court may decide not to convict a person who has pleaded guilty or been found guilty. Instead, the court directs that the person be discharged, either absolutely or on conditions in a probation order. To get there, two tests must be met: the discharge must be in the person’s best interests, and it must not be contrary to the public interest.
There are hard limits as well. A discharge is unavailable for an offence with a minimum punishment, or for an offence punishable by 14 years or life. That rules out, for instance, fraud over $5,000 and trafficking in Schedule I drugs.
A person who is discharged is deemed not to have been convicted. That is why it is often the goal for a first-time offender in a shoplifting or minor assault case, especially someone whose job or immigration status could be damaged by a conviction. A discharge is still a finding of guilt, though, and it comes with practical strings:
- Absolute discharge. You are done as soon as it is ordered, without conditions.
- Conditional discharge. You are placed on probation, for up to three years. If you are convicted of another offence, including breaching that probation, during the probation period, the court can revoke the discharge, convict you of the original offence and sentence you for it.
Under section 6.1 of the Criminal Records Act, a federal record of an absolute discharge must not be disclosed after one year, and for a conditional discharge, after three years. The RCMP is also required to remove references from the police database after those periods. Police services’ local records and foreign border authorities can be another matter. Keep your court paperwork, and check that the record has actually been cleared if you later need a clean check.
Suspended Sentence and Probation
If the court does convict you, it may suspend the passing of sentence and put you on probation. This means there is a conviction but no jail. A probation order also often follows a fine or a jail term of up to two years.
A probation order can last up to three years. Certain conditions are mandatory, including keeping the peace, appearing in court when required, and reporting changes of name, address and employment. Optional conditions may require you to report to a probation officer, attend counselling or a program, avoid certain people or places, perform community service, or abstain from alcohol or drugs where that is related to the offence.
Breach of probation is a separate offence, and it can bring a fresh charge and a longer record. Read your order carefully. If life has changed and a condition is unworkable, a court can vary optional conditions. Do not simply ignore them.
Fines, Surcharges and Restitution
A fine can stand alone or be added to another sentence. Before setting a fine, a court is generally required to consider whether you are able to pay. Fines typically come with a date for payment, and failing to pay may lead to further consequences. In Ontario, you may be able to discuss time to pay or other options with the court, so ask before a deadline passes.
On top of any penalty, a victim surcharge applies to anyone convicted or discharged. It is 30 percent of any fine imposed, or, if no fine is imposed, $100 per summary offence or $200 per indictable offence. A judge can waive or reduce it where paying would cause undue hardship, as defined in the Code. Restitution orders can also be made for property damage, lost income or other readily ascertainable losses, and these can be enforced in civil court if unpaid.
Conditional Sentences: Jail in the Community
A conditional sentence order is a sentence of imprisonment that the court allows to be served in the community. Section 742.1 permits one where the sentence is less than two years, serving it in the community would not endanger public safety, and it is consistent with the principles of sentencing. It is not available for an offence with a minimum term of imprisonment, or for a specific list of serious offences. That list includes attempted murder, torture, advocating genocide, certain sexual assault offences, certain offences against children, and some terrorism and criminal organization offences.
In practice, a conditional sentence often includes house arrest, with exceptions for work, medical needs and other approved reasons. A breach is taken seriously. On a breach the burden is lower than on a criminal charge, and the court can order you to serve the rest of the sentence in jail. The Supreme Court of Canada explained in R. v. Proulx that this is a real punishment with both punitive and rehabilitative aims, so someone who treats it as a soft option is likely to be disappointed.
A conditional sentence is a conviction, so it does leave a record, which is an important difference from a discharge. However, for non-citizens it is treated differently from a jail term in the immigration analysis, as explained below.
Custody
Custody is meant as the last resort, but it remains necessary in many cases. A few rules are helpful:
- Provincial or federal. Sentences under two years are served in a provincial facility. Sentences of two years or more are served in a federal penitentiary.
- Intermittent sentences. A sentence of 90 days or less may be served in blocks, typically on weekends, along with probation. This depends on the circumstances and the availability of accommodation.
- Pre-sentence custody. Time already spent in jail awaiting trial can be credited. The usual maximum credit is 1.5 days for each day served, if the circumstances justify it.
- Parole. Most custodial sentences carry release possibilities, but they are not automatic, and they have their own eligibility rules.
Some offences carry mandatory minimum sentences, which limit what a judge can do. Some of those minimums have been repealed or struck down, while others remain. Your lawyer can confirm whether one applies and whether a constitutional challenge is possible.
Ancillary Orders
Sentencing can bring additional orders that outlast the main sentence. Depending on the offence, these might include a DNA order, a weapons prohibition, a driving prohibition, forfeiture of property, a no-contact order during custody, or for sexual offences, registry requirements. Fraud can bring a prohibition on handling other people’s money. Be sure you know about these before pleading, since they can matter for a job or a licence more than the sentence itself.
Immigration Warnings
Anyone who is not a Canadian citizen should get immigration advice before sentencing. A discharge is not a conviction for the purposes of inadmissibility. By contrast, a conviction for an offence punishable by a maximum of at least 10 years, or a term of imprisonment of more than six months, can trigger serious criminality for a permanent resident. A sentence of six months or more can also remove a right of appeal. The Supreme Court considered a conditional sentence in this context in Tran v. Canada, and in R. v. Pham it recognized that a sentencing judge may consider immigration consequences, within the bounds of a proportionate sentence. The rules are detailed and they do change, so confirm the current law with IRCC and your lawyer. Our immigration law team can help coordinate that with the criminal file.
Getting Ready for a Sentencing Hearing
Good sentencing preparation can change what a judge knows about you. Before the hearing, think about gathering:
- Letters of support. Employers, teachers, faith leaders and community members should know the offence, in writing, and speak to your character honestly. A letter that does not mention the charge is often given little weight.
- Proof of work and income. Pay stubs, an employment letter, or proof of school enrolment are useful.
- Treatment records. Show what you started before the court ordered you to. Counselling, addiction programs and assessments matter, particularly if they address the cause of the offence.
- Proof of restitution. Keep receipts.
- Specific consequences. If a conviction would cost you a job, a licence or immigration status, bring evidence to support what you say.
The court can also order a pre-sentence report by a probation officer, based on interviews with you and others. Treat that interview as seriously as you would a court appearance, and be honest and on time. Victims can file a victim impact statement, and a judge is required to consider it. You or your lawyer will have the opportunity to speak, and the judge will usually ask whether you have anything to say. Prepare a short, sincere statement if you plan to speak.
Be careful with joint submissions too. When the Crown and defence agree on a sentence, a judge is expected to accept that unless it would bring the administration of justice into disrepute, or is otherwise against the public interest. That can provide helpful certainty, but it is still not a guarantee. Ask your lawyer to explain what you are agreeing to, and what a judge could do differently.
Sentencing outcomes depend on details. A person charged with assault or shoplifting with no record and solid support stands in a different position than someone with prior convictions, and an effective plan is built around those differences. Speak to a lawyer well before your sentencing date, ideally before you enter any plea, so there is time to collect what you need. No one can guarantee a sentence. A careful, honest presentation still gives the court a fuller picture on which to make its decision, and that is often where the real work lies.