Canadian criminal justice: Sentencing

6 - Pre-charge diversion

When a defendant pleads guilty or is found guilty after a trial, their case proceeds to a sentencing hearing. At this hearing, the judge must decide what sentence to impose.

The judge's decision must be based on the principles of sentencing set out in the Criminal Code and in the case law. The fundamental principle is "proportionality" (that the sentence must be proportionate to the defendant and to the severity of the offence). To decide this question, the judge must take into account the aggravating and mitigating factors (other facts that tend to make the case more or less severe). Other important principles include the principle of "denunciation" (that we must condemn criminal behaviour on behalf of the community), the principle of "deterrence" (that we must stop the defendant and others from committing these offences), the principle of "rehabilitation" (that the sentence should help the defendant become a functioning member of society again), and the principle of "restraint" (that the least severe but reasonable sentence should be imposed).

The range of sentences that may be available depends in part on the limits placed in the Criminal Code and on the case law showing how similar defendants were sentenced for the same offences. All offences have a maximum sentence and some offences even have a minimum sentence. Canadian criminal law recognizes the following types of sentence.

  • For minor offences committed by first-time offenders, the court may impose a discharge instead of a conviction, which may or may not include a period of probation. This is the best possible sentence because it does not result in a permanent criminal record.
  • The court may impose a suspended sentence, which includes a period of probation.
  • As indicated, the court may impose probation, which is a set of conditions that the defendant must follow for several months or years after the sentencing date. These conditions may include reporting to a probation officer, avoiding the victims, or taking rehabilitative courses and programs.
  • The court may impose a financial penalty, such as "restitution," where the defendant pays for damaged or stolen property, and "fines," where the defendant forfeits money to the government as punishment.
  • The court may impose a conditional sentence, which is a jail sentence that the defendant is allowed to serve in the community on conditions (usually on house arrest) rather than go to an actual jail. This is only available for sentences less than two years in length. If the defendant breaks one of their conditions, they could spend the rest of their sentence in actual jail
  • The court may impose real imprisonment, where the defendant is sent to a provincial jail if the sentence is less than two years or to a penitentiary if the sentence is two years or more. If the sentence is ninety days or less and the defendant has work or school obligations, the judge may impose an "intermittent" sentence, where the defendant goes to jail on weekends or some other part-time schedule.

(Sometimes, the judge may be able to combine two or more of these sentences.) In addition to these sentences, the court may impose special ancillary orders that limit a person's liberty, such as a prohibition on driving, the National Sex Offender Registry, a DNA databank order, or a weapons prohibition.

In some cases, the prosecution and defendant may agree on what the sentence should be. This is called a "joint submission." Judges are not required to follow joint submissions, but they can only reject a joint submission if the proposed sentence would bring the administration of justice into disrepute or would otherwise be contrary to the public interest. This means that judges will usually accept a joint submission, but defendants should be ready in case they are rejected.

Our lawyers thoroughly prepare for sentencing hearings. We negotiate favourable facts for guilty pleas, gather supporting documents, and bringing helpful caselaw. We have had great success in negotiating favourable joint submissions and in arguing for favourable results where the prosecution did not agree. We have even had sentences reduced as a result of violations of the Canadian Charter of Rights and Freedoms.

Contact the lawyer of your choice for a free consultation.

This blog post is part of our Canadian criminal justice series – we hope that these blog posts will shed some light on the Canadian criminal justice system for clients and potential clients, members of the community, and law students. Feel free to e-mail us at to propose any changes or updates.