The Sentencing Process in Ontario

Sentencing is the stage of the criminal process where a judge determines the appropriate consequence for a criminal offence. It follows either a guilty plea or a finding of guilt after trial. While the public often focuses on trials, sentencing is where the outcome of a case becomes real — it is the moment that determines whether an accused person receives a discharge, a fine, probation, a conditional sentence, or a period of incarceration.

The sentencing process in Ontario is governed primarily by Part XXIII of the Criminal Code of Canada, which sets out the purposes, principles, and available sanctions for criminal offences. Understanding how sentencing works — and the factors that influence a judge's decision — is essential for anyone facing criminal charges.

The Purpose and Principles of Sentencing

Section 718 of the Criminal Code sets out the fundamental purpose of sentencing: to protect society and to contribute to respect for the law and the maintenance of a just, peaceful, and safe society. Sentencing is intended to achieve one or more of the following objectives:

• Denunciation: Communicating society's condemnation of the offender's conduct
• Deterrence: Discouraging the offender (specific deterrence) and others (general deterrence) from committing similar offences
• Separation: Isolating offenders from society where necessary to protect public safety
• Rehabilitation: Assisting offenders in becoming law-abiding members of society
• Reparation: Providing reparations for harm done to victims or to the community
• Responsibility: Promoting a sense of responsibility in offenders and acknowledgment of the harm done

The Criminal Code also establishes key principles that guide every sentencing decision. The most important is proportionality: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (section 718.1). A sentence should not be more severe than is necessary to achieve the purposes of sentencing.

Related to proportionality is the principle of parity: similar offenders who commit similar offences in similar circumstances should receive similar sentences (section 718.2(b)). This does not mean identical sentences — no two cases are exactly alike — but it provides a framework of consistency.

The principle of restraint directs that an offender should not be deprived of liberty if less restrictive sanctions are appropriate, and that the least restrictive sentence that is appropriate in the circumstances should be imposed (sections 718.2(d) and (e)).

Aggravating and Mitigating Factors

Every sentencing decision involves a balancing of factors that increase or decrease the severity of the sentence. These are known as aggravating and mitigating factors.

Aggravating factors — factors that tend to increase the severity of the sentence — include:

• The offence involved violence, threats of violence, or the use of a weapon
• The offence was motivated by bias, prejudice, or hate based on race, religion, sexual orientation, or other protected characteristics (section 718.2(a)(i))
• The offender abused a position of trust or authority (e.g., domestic relationships, employer-employee, teacher-student)
• The victim was vulnerable (a child, an elderly person, a person with a disability)
• The offender has a prior criminal record, particularly for similar offences
• The offence was planned and deliberate rather than impulsive
• The offence had a significant impact on the victim (physical, emotional, or financial)
• The offence was committed while on bail, probation, or conditional release

Mitigating factors — factors that tend to decrease the severity of the sentence — include:

• The offender has no prior criminal record (a first offence is one of the most powerful mitigating factors)
• The offender has expressed genuine remorse and taken responsibility
• The offender entered a guilty plea (which saves the court and witnesses the burden of a trial)
• The offender is young
• The offender has strong community ties, stable employment, and family support
• The offender has taken rehabilitative steps since the offence (counselling, treatment programs, education)
• The offence was out of character and unlikely to be repeated
• The collateral consequences of the conviction are severe (e.g., loss of professional licence, immigration consequences, loss of employment)

Pre-Sentence Reports

In many cases, the judge will order a pre-sentence report (PSR) before making a sentencing decision. A PSR is prepared by a probation officer and provides the court with detailed information about the offender's background, circumstances, and prospects for rehabilitation.

A typical PSR includes:

• Family history and upbringing
• Education and employment history
• Physical and mental health
• Substance use history
• The offender's attitude toward the offence and the victim
• Community support and resources available to the offender
• An assessment of risk and the offender's suitability for community-based sanctions

The probation officer typically interviews the offender, and may also speak with family members, employers, and other people who can provide relevant information. The report is shared with the Crown, the defence, and the judge.

A PSR can be a powerful tool at sentencing, particularly when it reveals a troubled background that helps explain the offending behaviour, or when it demonstrates that the offender has strong prospects for rehabilitation. Defence counsel should work with the client to ensure the probation officer has a complete and accurate picture.

Victim Impact Statements

Victims of crime have the right to prepare and present a victim impact statement (VIS) at sentencing. Under section 722 of the Criminal Code, a VIS describes the physical, emotional, and financial harm the offence has caused the victim.

The victim may present the statement in writing, read it aloud in court, or present it in another form approved by the court (such as a recording). The judge must consider the VIS when determining the sentence.

Victim impact statements can be powerful and emotional. They serve an important function in the justice system by ensuring that the human consequences of criminal conduct are placed before the court. Defence counsel may not cross-examine the victim on the contents of the VIS, though they may challenge statements of fact that are inaccurate or that go beyond the permissible scope (the VIS should describe the impact of the offence, not express an opinion on the appropriate sentence).

Gladue Principles and Indigenous Offenders

Section 718.2(e) of the Criminal Code directs that "all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders."

This provision was interpreted by the Supreme Court of Canada in the landmark decision R v Gladue (1999) and further developed in R v Ipeelee (2012). The court held that sentencing judges must take into account the unique systemic and background factors that have contributed to the overrepresentation of Indigenous peoples in the criminal justice system, including the legacy of residential schools, colonialism, displacement, and intergenerational trauma.

A Gladue report is a specialized pre-sentence report that provides the court with information about the Indigenous offender's personal history, community, and the systemic factors relevant to their circumstances. Gladue reports are prepared by specially trained writers and are more detailed than standard PSRs.

Gladue principles do not guarantee a more lenient sentence, and they do not exempt Indigenous offenders from incarceration for serious offences. What they require is that the sentencing judge give serious consideration to restorative justice approaches and alternatives to imprisonment that are appropriate to the offender's circumstances and the seriousness of the offence.

The Range of Sentences

Ontario courts have a range of sentencing options available, from the least to the most restrictive:

Absolute discharge: The offender is found guilty but not convicted. The discharge takes effect immediately with no conditions. After one year, the record is removed from the CPIC database. See our detailed guide on discharges vs convictions.

Conditional discharge: Similar to an absolute discharge, but the offender must complete a period of probation (up to three years). If probation is completed successfully, the discharge takes effect and the record is removed after three years.

Suspended sentence with probation: The offender is convicted, but the sentence is suspended and the offender is placed on probation for up to three years. This results in a criminal record but avoids incarceration.

Fine: A monetary penalty. For summary conviction offences, the maximum fine is generally $5,000 unless the statute provides otherwise. For indictable offences, there is no statutory maximum fine. A fine may be imposed alone or in combination with probation.

Conditional sentence order (CSO): Sometimes called "house arrest," a CSO allows the offender to serve a jail sentence in the community, subject to conditions that typically include house arrest (confinement to the residence except for specified purposes). CSOs are available only for offences that do not carry a mandatory minimum sentence and for which the court would have imposed a sentence of imprisonment of less than two years. The availability of CSOs was significantly restricted by Parliament in 2012 and further amended in 2022.

Imprisonment: A sentence of incarceration. Sentences of less than two years are served in a provincial institution. Sentences of two years or more are served in a federal penitentiary. For some offences, Parliament has established mandatory minimum sentences that the judge cannot go below.

Intermittent sentence: For sentences of 90 days or less, the court may order the sentence to be served intermittently — typically on weekends — allowing the offender to maintain employment during the week.

The Sentencing Hearing: What Happens in Court

A sentencing hearing typically proceeds as follows:

1. Facts are read into the record. If the case was resolved by guilty plea, the Crown reads an agreed statement of facts. If the case proceeded to trial, the judge already knows the facts from the evidence presented.
2. Criminal record. The Crown files the offender's criminal record, if any.
3. Victim impact statement. The VIS is presented to the court.
4. Crown submissions. The Crown makes submissions on the appropriate sentence, citing relevant case law and sentencing principles.
5. Defence submissions. Defence counsel makes submissions on behalf of the offender, presenting mitigating factors, supporting letters, and relevant case law. If a joint submission was agreed upon, both parties present it together.
6. Offender's statement. The offender may address the court directly. This is optional but can be effective when genuine remorse and insight are conveyed.
7. The judge's decision. The judge considers all of the information presented and imposes a sentence, providing reasons for the decision.

Sentencing hearings can be brief (for joint submissions on straightforward matters) or take an entire day or more (for complex or contested sentencings). Your lawyer will prepare you for what to expect and ensure that the court has all the information it needs to impose a fair and proportionate sentence.

Effective sentencing advocacy requires thorough preparation, a deep understanding of the applicable law, and the ability to present the offender's circumstances in a compelling way. If you are facing sentencing, consult with a criminal defence lawyer who can help ensure the best possible outcome.