Sentencing Range & Options

Overview

The available sentence depends on the offence, the offender and the statutory conditions for each sanction. A discharge, suspended sentence, probation order and conditional sentence of imprisonment have different legal effects. The court must first identify lawful options and then choose a proportionate sentence under sections 718–718.2 of the Criminal Code. These notes concern the ordinary adult regime; youth and Quebec provincial penal proceedings have distinct rules.

Learning Objectives

• Distinguish the principal sentencing options and their eligibility requirements.
• Explain conditions, payment obligations and the different consequences of breach.
• Apply imprisonment thresholds, presentence credit and conditional-sentence restrictions accurately.

Discharge and Probation

Absolute or conditional discharge

Section 730 permits a discharge for an individual, not an organization, where the offence has no minimum punishment and is not punishable by imprisonment for 14 years or life. Eligibility alone is insufficient: the disposition must be in the accused's best interests and not contrary to the public interest. The court considers the person's circumstances and the demonstrated consequences of conviction, along with offence gravity, deterrence, comparable sentences and public confidence.

A discharge is not an acquittal: it follows a guilty plea or finding of guilt while avoiding a conviction, subject to the statutory exceptions. An absolute discharge has no probation conditions; a conditional discharge requires compliance with a probation order. It does not mean that every record disappears immediately. Nor is discharge automatically granted to a first offender or categorically unavailable whenever the person has a prior conviction.

Suspended sentence and other probation orders

Under section 731(1)(a), where no minimum punishment is prescribed, the court may suspend the passing of sentence and place the offender on probation. A conviction remains. Suspending sentence is different from imposing imprisonment to be served in the community.

Probation can also accompany a fine or imprisonment not exceeding two years under section 731(1)(b), subject to the rules governing combinations. JurisClasseur distinguishes that provision from intermittent imprisonment: ordinary probation cannot simply be added to a combination of both a fine and continuous imprisonment for the same offence. For the two-year probation ceiling, the relevant sentence is calculated after presentence credit, with applicable aggregation rules. Probation can last no more than three years; its commencement depends on the accompanying disposition.

For that ceiling, combine the terms imposed by the same court at the same sentencing hearing, accounting for concurrent or consecutive service. An aggregate exceeding two years prevents ordinary probation; an earlier sentence imposed by another court on another occasion is not added for this particular eligibility calculation. Earlier imprisonment can nevertheless affect when probation begins. Keep the eligibility calculation separate from commencement (JurisClasseur, fasc. 21, nos 20–24 and 40).

The commencement rules also account for previously imposed imprisonment. Section 732.2 ordinarily limits probation to three years from its coming into force, subject to the specific post-conviction extension power in subsection (5). A new conviction or incarceration does not simply erase an order already in force; the order continues except insofar as the sentence temporarily makes compliance impossible. Criminal Code, section 732.2.

Conditions and breach

Mandatory probation conditions include keeping the peace and being of good behaviour, appearing when required, notifying the court or probation officer in advance of a change of name or address, and promptly notifying changes in employment or occupation. Optional conditions must be authorized, clear, reasonable and connected to protection of society or the offender's reintegration. Reporting to a probation officer is an optional probation condition, unlike the mandatory reporting requirement for a conditional sentence.

Failure or refusal to comply without reasonable excuse can constitute the separate offence under section 733.1. Subjective fault is required; recklessness can suffice. An allegation does not automatically establish breach or cancel the order. Where section 732.2(5) applies following a conviction for an offence committed during probation, the court has specified powers after hearing the parties. Revocation can permit sentencing on the original offence when its sentence had been suspended; it does not permit a second sentence on an original offence for which imprisonment or a fine was already imposed.

Monetary Sanctions

Fine and victim surcharge

For an individual, a fine under section 734 may replace another punishment except a minimum term of imprisonment, or accompany a legally compatible sentence. It cannot replace mandatory imprisonment. Ordinarily, the court must be satisfied that the person can pay or discharge the fine through an available fine-option program. The party requesting the fine establishes that capacity on a balance of probabilities. This prerequisite does not apply to a minimum fine; special fine regimes also require separate analysis. Financial difficulty does not itself justify selecting imprisonment instead.

The court fixes a reasonable payment period. Non-payment does not automatically authorize imprisonment: the statutory enforcement requirements and reasonable-excuse analysis matter, including the distinction between inability and refusal to pay. Organizations have a different fine regime, addressed in the organizational-sentencing lesson.

Where time to pay was allowed, section 734.7 requires that it expire before a committal warrant is issued. The court must then be satisfied either that the administrative and civil mechanisms under sections 734.5–734.6 are inappropriate, or that the offender has refused without reasonable excuse to pay or discharge the fine through an available fine-option program. JurisClasseur explains the indigence qualification to those ordinarily alternative grounds: inability to pay cannot be turned into imprisonment merely by declaring other collection methods unhelpful. Where indigence is the excuse, the alternative grounds are read cumulatively to protect genuine inability to discharge the fine. Evidence of lost employment and unavailable resources must be assessed; by contrast, an offender who has the means but deliberately refuses payment raises a different enforcement question. This is enforcement of the fine, not sentencing for a new default offence (fasc. 21, nos 63–71; Criminal Code, section 734.7).

The victim surcharge under section 737 is distinct from the fine. The ordinary amount is 30% of any fine; without a fine, it is $100 for a summary-conviction offence and $200 for an indictable offence. The court may waive or reduce it for undue hardship or because it would be disproportionate to offence gravity or responsibility. The latter ground is not limited to financial hardship.

Restitution

The court must consider restitution, but making an order is not automatic. Sections 738 and following govern eligible, readily ascertainable losses and expenses. The process does not replace a civil trial over complex damages or authorize compensation for every kind of loss. The amount cannot exceed the qualifying loss or reasonable expense.

Ability to pay is relevant to the court's discretion, including future resources, but present inability is not an absolute bar. Assess restitution within the overall proportionate sentence and avoid treating it as an unlimited addition to an otherwise complete punishment. Restitution to victims must be considered before the relevant fine or forfeiture alternatives; civil enforcement is available under the statutory regime.

The statutory category and the ease of valuing the loss are separate questions:

For example, in a hypothetical assault claim, admitted payroll records establish $1,200 in lost income caused by the injury, while the victim also requests $10,000 for pain and suffering. The income loss fits the pecuniary-harm category and its amount can be established. The non-pecuniary claim does not become eligible under that category merely because the victim assigns it a figure. A seriously disputed commercial account would raise a further ascertainability problem even if some loss belonged to a statutory category. The court still exercises its sentencing discretion over the eligible amount (fasc. 21, nos 110–117; Criminal Code, section 738).

Imprisonment

Duration, place and intermittent service

Determine the applicable maximum, any valid minimum and whether terms run concurrently or consecutively; then assess totality. Ordinary institutional sentences of less than two years are served provincially, while terms of two years or more are generally served in a federal penitentiary, subject to statutory aggregation and special rules.

Section 732 permits intermittent service of a sentence of 90 days or less where appropriate, taking account of the offender, offence and availability of a suitable institution. Probation governs the periods outside custody and any further period ordered. The court cannot evade the ceiling by stacking intermittent terms beyond the permitted total. Breach does not simply convert the sentence automatically; the applicable breach or subsequent-sentence provision must be identified.

Credit for presentence custody

Section 719 allows credit for custody resulting from the offence: up to one day per day under subsection (3), or up to 1.5 days where circumstances justify it under subsection (3.1). Under Summers, loss of early-release eligibility ordinarily supports enhanced credit without proof of exceptional hardship. The 1.5 ratio is usual, not automatic in every case. The court must explain and record the credit; days at liberty are not presentence custody.

Conditional Sentence of Imprisonment

Eligibility and the court's assessment

A conditional sentence is imprisonment served in the community under sections 742.1 and following. It requires an appropriate term of less than two years, community safety and consistency with sentencing principles. Section 742.1(b) excludes an offence punishable by a minimum term of imprisonment. The provision also excludes the specified attempted-murder, torture and advocating-genocide offences, and indictable terrorism or criminal-organization offences with a maximum of ten years or more. Criminal Code, section 742.1

The appropriate duration and conditions must be assessed together. Eligibility is not an entitlement: evaluate the risk and potential harm of reoffending, realistic supervision and the sentence's punitive and rehabilitative purposes. Presentence credit that reduces an otherwise penitentiary sentence below two years does not itself create eligibility. Historical statutory versions must be considered with the applicable temporal sentencing rules.

Worked example: credit and eligibility

Factual Scenario

For this hypothetical arithmetic exercise, take an already determined term of 900 days before credit as a given; the exercise does not establish that term's fitness for any particular offence. The offender spent 120 days in custody resulting from the offence. The court finds the circumstances justify credit at 1.5 days per day. No other sentence is imposed at this hearing. Determine the credit, the remaining term and whether crossing the two-year boundary permits probation or conditional imprisonment.

Variation

At the same hearing, the court also imposes an independently determined consecutive term of 90 days. No additional credit applies. Does the first count's 720-day term still establish eligibility for ordinary probation?

Conditions and non-compliance

As Proulx explains, a conditional sentence has punitive features beyond ordinary probation. House arrest or a strict curfew should normally be included, subject to the circumstances; the case does not mandate both in every order. The statutory mandatory conditions and any reasonable optional conditions must be clear and understood.

Breach proceedings under section 742.6 differ from a prosecution for breach of probation. On a breach without reasonable excuse established under that section's balance-of-probabilities procedure, the court may take no action, vary optional conditions, suspend the order and require part of the remaining sentence in custody, or terminate the order and require the remaining sentence in custody. The breach itself is not a new criminal offence, although the same conduct may separately constitute one.

The allegation is supported by a supervisor's written report, disclosed with reasonable notice; the offender may seek leave to require the supervisor or an included witness for cross-examination. The offender bears the burden of establishing a reasonable excuse. The running of the order can be suspended during breach proceedings even while its conditions continue to apply, subject to the statutory detention and credit rules. A missed appointment under probation instead raises the separate offence and subjective-fault analysis under section 733.1. A fine default follows its enforcement procedure. The label “non-compliance” does not choose the burden or remedy (fasc. 21, nos 42 and 196–199; Criminal Code, section 742.6).

Worked example: constructing a sentencing package

Factual Scenario

An adult pleads guilty to assault with a weapon, prosecuted by indictment under section 267, and to damaging the victim's phone during the same confrontation. In this hypothetical, the admitted weapon is a bottle; the Crown additionally alleges a planned knife attack, which the offender disputes. The conviction does not resolve that additional allegation. Payroll records establish income lost through the injury. The offender has no record and produces disputed evidence of completing counselling. The parties make separate recommendations. The Crown proposes continuous custody, a fine and probation for the assault; the defence seeks a discharge because this is a first conviction, or alternatively conditional imprisonment. Identify the decisions needed to produce lawful, supported reasons.

Practice Checklist

• Identify the correct adult, youth or provincial regime and the applicable statutory version.
• Check each sanction's eligibility, permitted combinations, duration and commencement.
• Distinguish discharge, suspended sentence, probation and conditional imprisonment.
• Analyze financial capacity, surcharge relief and qualifying restitution separately.
• Record credit and totality calculations, and explain conditions and the proper breach process.