Types of Sentences in Canada

A discharge is one sentencing option under section 730 of the Criminal Code. It is only available for some offences. It cannot be used for an offence with a mandatory minimum penalty, or for an offence with a maximum penalty of 14 years or life in prison.

With a discharge, the person is found guilty, but the law treats them as not convicted. An absolute discharge has no conditions. A conditional discharge comes with conditions, usually set out in a probation order. If the discharge is not revoked, no conviction is registered for that offence.

A discharge can still be appealed, and can still appear in some background checks. If a person is convicted instead of discharged, a criminal record may result. Our Pardons and Record Suspensions page explains how a record can later be dealt with.

Under section 731 of the Criminal Code, a judge can suspend the passing of sentence and instead release the person on a probation order. This is sometimes called a suspended sentence. It is only available where the offence has no mandatory minimum penalty.

A judge can also add a probation order on top of a fine, or on top of a jail sentence of two years or less. Probation is not automatic. It comes with specific conditions the person must follow, for a set period of time set by the judge.

Under section 734 of the Criminal Code, a judge can order a person to pay a fine. A fine can be given on its own, alongside another sentence, or in place of one, depending on the offence.

Before ordering a fine, the judge must usually be satisfied the person is able to pay it. The exceptions are where the law sets a mandatory minimum fine, or where the fine replaces a forfeiture order. If a fine is not paid, there can be further consequences, including possible imprisonment for default, as set out in the Criminal Code.

Restitution is a separate order under section 738 of the Criminal Code. It requires the person found guilty, or discharged under section 730, to pay back another person for specific, calculable losses. This can include the cost to repair or replace damaged property, or income lost because of the offence.

Restitution is limited to the losses and expenses covered by the Criminal Code where the amount is readily ascertainable. Restitution can be ordered along with almost any other sentence, including a discharge, probation, a fine, or jail.

A conditional sentence is a sentence of imprisonment served in the community under strict conditions. It is available only where the statutory requirements are met, and its conditions do not always amount to full-time house arrest. The rules for conditional sentences are set out in section 742.1 of the Criminal Code.

A conditional sentence is not available for every case. The jail sentence must be less than two years. The offence cannot carry a mandatory minimum penalty. Section 742.1 also excludes conditional sentences for specified offences and circumstances. The judge must also be satisfied that serving the sentence in the community would not endanger public safety.

Breaking the conditions of a conditional sentence can lead to the rest of the sentence being served in jail instead.

Imprisonment means time served in jail or prison. The length depends on the offence and the Criminal Code section that applies to it.

For a jail sentence of 90 days or less, section 732 of the Criminal Code lets a judge order it be served intermittently — for example, on weekends. This is instead of serving the whole sentence at once. Outside of the time in custody, the person must follow the conditions of a probation order. An intermittent sentence is only available for shorter sentences, and only where a judge decides it is appropriate.

Probation conditions are rules a person must follow. Every case is different, so the exact conditions depend on what the judge orders. Conditions can include things like:

• keeping the peace and being of good behaviour;
• reporting to a probation officer;
• staying within a certain area;
• having no contact with a named person;
• not possessing weapons;
• attending counselling or treatment;
• doing community service.

A judge decides which conditions apply, and for how long, based on the case in front of them.

Sentencing in Canada follows purposes and principles set out in section 718 of the Criminal Code. These include protecting the public, denouncing the crime, and considering the person's circumstances. Our Sentencing Principles page explains these rules in more detail.

For Indigenous offenders, the law requires a judge to also consider specific factors known as Gladue factors. See our Gladue Rights page to learn more.

To see how a sentence is actually decided in court, read our Sentencing Hearings page.

Different orders have different breach procedures. Failing or refusing, without a reasonable excuse, to follow a probation order can lead to a separate charge for breach of probation under s. 733.1.

A breach of a conditional sentence order is dealt with through the process in s. 742.6, rather than as a separate offence of breaching that order. The court decides whether a condition was breached on a balance of probabilities. If the offender relies on a reasonable excuse, the offender has the burden of proving it.

If the court finds that a condition was breached without a reasonable excuse, it may take no action; change the optional conditions; suspend the order and require the offender to serve part of the remaining sentence in custody, after which the conditional sentence resumes with or without changes to its optional conditions; or terminate the order and require the offender to serve the remaining sentence in custody.

Conduct connected to the breach may still lead to a separate charge if that conduct independently constitutes another offence.

An intermittent sentence also operates alongside a probation order while the person is out of custody, so failing to follow those probation conditions can have separate consequences.

Our Failure to Comply with a Probation Order page explains the probation offence.