The Purpose of Sentencing: Criminal Code Section 718
The fundamental purpose of sentencing in Canada is set out in Criminal Code s.718: to protect society and to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful, and safe society by imposing just sanctions that have one or more of the following objectives:
- (a) to denounce unlawful conduct and the harm done to victims or to the community;
- (b) to deter the offender and other persons from committing offences;
- (c) to separate offenders from society, where necessary;
- (d) to assist in rehabilitating offenders;
- (e) to provide reparations for harm done to victims or to the community;
- (f) to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.
No single objective automatically trumps the others. The sentencing judge must weigh all applicable objectives in light of the specific offence and offender. In serious violent cases, denunciation and deterrence will typically dominate. For non-violent first offenders, rehabilitation may be the primary objective.
The Fundamental Principle: Proportionality (Section 718.1)
Section 718.1 of the Criminal Code establishes the fundamental principle of sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.
The Supreme Court of Canada in R. v. Lacasse, 2015 SCC 64 confirmed that proportionality is the overarching principle that governs the entire sentencing analysis. All other objectives in s.718 and the additional principles in s.718.2 must operate within the bounds of proportionality. A sentence may not be increased beyond what is proportionate simply to achieve deterrence or denunciation.
Proportionality has two dimensions: (1) the gravity of the offence — measured by the harm caused, the maximum penalty, and the circumstances of commission; and (2) the degree of responsibility of the offender — measured by moral blameworthiness, including intention, motive, and personal circumstances.
Other Sentencing Principles: Section 718.2
Section 718.2 establishes additional sentencing principles:
Aggravating and Mitigating Factors (s.718.2(a))
Section 718.2(a) requires a court to take into account aggravating and mitigating factors relating to the offence or the offender. Statutory aggravating factors listed in s.718.2(a)(i)-(viii) include:
- Evidence that the offence was motivated by bias, prejudice, or hate based on listed grounds (hate crimes);
- Evidence that the offender abused a position of trust or authority;
- Evidence that the offence had a significant impact on the victim due to age, disability, or other factors;
- Evidence that the offence was committed for the benefit of, at the direction of, or in association with a criminal organization;
- Evidence that the offence constituted terrorist activity;
- Offences against intimate partners or family members (increased weight under 2018 amendments).
Common mitigating factors in Ontario sentencing include: guilty plea (especially early plea demonstrating remorse); prior clean record; youthful age; employment and community ties; expression of remorse; substance abuse history; mental health issues; and cooperation with police.
Parity (s.718.2(b))
A sentence should be similar to sentences imposed on similar offenders for similar offences committed in similar circumstances. Parity is particularly important in co-accused sentencings, where sentencing judges must explain any significant disparity between co-accused who played comparable roles.
Totality (s.718.2(c))
Where consecutive sentences are imposed for multiple offences, the combined sentence must not be unduly long or harsh. The totality principle requires the sentencing judge to step back and consider the overall effect of all the sentences imposed.
Restraint (s.718.2(d)-(e))
Section 718.2(d) directs courts to consider all available sanctions other than imprisonment that are reasonable in the circumstances. Section 718.2(e) directs that all available sanctions other than imprisonment are to be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.
Gladue Principles: Indigenous Offenders
The Supreme Court of Canada in R. v. Gladue, [1999] 1 SCR 688 gave content to s.718.2(e) and established a framework for sentencing Indigenous offenders. The Court in R. v. Ipeelee, 2012 SCC 13 reaffirmed and strengthened the Gladue framework.
The Two-Part Gladue Analysis
At sentencing of an Indigenous offender, the court must:
- Consider systemic and background factors that may have played a role in bringing the offender before the court — including the inter-generational effects of residential schools, family disruption, loss of language and culture, substance abuse, and over-representation of Indigenous people in the criminal justice system.
- Consider sentencing procedures and sanctions different from those of non-Indigenous offenders, including restorative justice measures, community-based sanctions, and culturally appropriate programming.
Gladue applies to all Indigenous people — First Nations, Métis, and Inuit — regardless of whether they live on-reserve or in urban settings. It applies at every sentencing, including for serious violent offences: the Supreme Court in Ipeelee rejected the proposition that Gladue does not apply above a certain threshold of offence seriousness.
Gladue Reports
A Gladue report is a specialized pre-sentence report prepared by a trained Indigenous community worker or Gladue writer. It documents the offender's personal, family, and community history, including the impact of systemic factors, and identifies culturally appropriate sentencing options. Gladue reports are distinct from standard pre-sentence reports (PSRs) and require considerably more extensive interviews and community consultation.
In Ontario, Gladue writers are available through Legal Aid Ontario and Indigenous court worker programs at Ontario Court of Justice locations. Defence counsel should request a Gladue report for any Indigenous client facing a custodial sentence.
Pre-Sentence Reports
A pre-sentence report (PSR) under Criminal Code s.721 is prepared by a probation officer and provides the court with information about the offender's background, family circumstances, employment history, attitude toward the offence, and suitability for probation or other community sanctions.
Defence counsel may request a PSR where it will provide helpful context. However, a PSR that reveals an offender's lack of remorse, criminal associates, or substance abuse problems can be harmful. Counsel should discuss the potential benefits and risks with the client before requesting one.
Conditional Sentence Orders: Section 742.1
A conditional sentence order (CSO) under s.742.1 allows an offender to serve a sentence of imprisonment of less than two years in the community, subject to conditions. The CSO provisions were significantly amended by Bill C-5 (S.C. 2022, c. 15), which came into force on November 17, 2022.
Eligibility Requirements
A CSO is available where:
- The offence does not have a minimum term of imprisonment;
- The court imposes a sentence of imprisonment of less than two years;
- The court is satisfied that serving the sentence in the community would not endanger the safety of the community; and
- The court is satisfied that serving the sentence in the community would be consistent with the fundamental purpose and principles of sentencing in ss.718-718.2.
Post-Bill C-5 Exclusions
Prior to Bill C-5, numerous offences were expressly excluded from CSO eligibility. Bill C-5 significantly narrowed the exclusion list. Currently excluded are: serious personal injury offences (as defined in s.752) involving the use or attempted use of violence against another person or creating a substantial likelihood of causing serious bodily harm; terrorism offences; criminal organization offences prosecuted by indictment with maximum of ten years or more; and offences under s.467.11 (participating in activities of criminal organization).
Conditions
A CSO includes compulsory conditions (remain in Canada, report to a supervisor, keep the peace and be of good behaviour) and optional conditions tailored to the offender (house arrest, curfew, treatment, abstinence from alcohol or drugs, community service, no-contact orders). Breach of a condition may result in suspension and a hearing before the court to determine whether the balance of the sentence should be served in custody.
Credit for Pre-Trial Custody: Section 719(3)
Section 719(3) of the Criminal Code directs the sentencing court to take into account any time spent in custody between arrest and sentencing. The Supreme Court of Canada in R. v. Summers, 2014 SCC 26 confirmed that enhanced credit of 1.5:1 for pre-trial custody is appropriate where the circumstances justify it — typically where the offender was detained and ineligible for remission while on remand.
Enhanced credit at 1.5:1 is not available where the offender was detained primarily due to a prior criminal record or was a breach of bail and the circumstances do not otherwise justify it: Criminal Code s.719(3.1). The standard credit rate is 1:1 where enhanced credit is not warranted.
Defence counsel must address credit for pre-trial custody at sentencing and ensure an accurate count of days in custody is placed before the court. The Crown and defence should agree on the count where possible.
Victim Surcharge: Section 737
Section 737 of the Criminal Code requires the court to impose a victim surcharge on every offender convicted or discharged of an offence. The surcharge is 30% of any fine imposed, or — where no fine is imposed — $100 per summary conviction offence and $200 per indictable offence.
Following the Supreme Court's decision in R. v. Boudreault, 2018 SCC 58, which struck down the mandatory victim surcharge as cruel and unusual treatment contrary to Charter s.12, Parliament amended s.737 to permit courts to waive the surcharge where payment would cause the offender undue hardship.
Practice Points for Ontario Criminal Defence Lawyers
- File a Gladue report for every Indigenous client facing custody — do not rely on a standard PSR to capture the systemic and background information required by Ipeelee.
- Address credit for pre-trial custody at the outset of the sentencing submissions and ensure the record reflects the accurate count.
- Following Bill C-5, assess CSO eligibility for all clients sentenced to less than two years — many previously excluded offences are now eligible.
- Where the Crown is seeking significant deterrence weight, make proportionality arguments — Lacasse confirms proportionality is the overarching principle that caps the sentence.
- For young offenders or first offenders in minor cases, explore absolute and conditional discharges (s.730) to avoid a criminal record where it would not be contrary to the public interest.
- Adduce character evidence — letters from employers, family, and community members are admissible at sentencing under Criminal Code s.723(3) and can meaningfully reduce the sentence.