Criminal Law
Alexandre Lacroix · September 17, 2026 · 7 min read
Contrary to popular belief, a finding of guilt does not automatically lead to prison. The Criminal Code gives the judge a range of sanctions, from an absolute discharge to the penitentiary, and requires the court, before considering depriving an accused of liberty, to examine less restrictive sanctions. This article summarizes the principles that guide that choice and presents the gradation of sentences available in Canadian criminal law. Me Alexandre Lacroix, criminal defence lawyer at Lacroix Tarabay Légal, can represent you at the sentencing stage.
The sentence must be proportionate: the starting point
Since its reform in 1996, the objectives and principles of sentencing have been codified in sections 718 and following of the Criminal Code. The fundamental principle is proportionality: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender (s. 718.1 Cr. C.). The other objectives, such as denunciation, deterrence, separating dangerous offenders from society, rehabilitation or reparation for the harm done, operate within that limit.
To place a sentence on that scale, the court must first consider the aggravating and mitigating circumstances relating to the offence and to the offender (s. 718.2(a) Cr. C.). Professors Parent and Desrosiers describe the meeting of these factors as a sculptor’s work:
Far from competing with one another, aggravating and mitigating factors meet and push against each other. Like stone under the repeated blows of the chisel, the silhouette of the crime and of the offender gradually emerges. Its composition is revealed in this posture, which allows the courts to grasp every shape, every contour needed to configure the sentence. [Our translation]
Three rules of consistency then apply: parity, which requires that similar offenders who commit similar offences receive similar sentences (s. 718.2(b)); totality, which prohibits sentences that are unduly long or harsh where consecutive sentences are imposed (s. 718.2(c)); and, finally, the principle of restraint in the use of imprisonment (s. 718.2(d) and (e)).
Imprisonment as a last resort
It is this principle of restraint that gives the gradation of sentences its full meaning. The wording of paragraph 718.2(d) of the Criminal Code is unambiguous:
(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances;
The authors of the Traité de droit criminel recall the observation that led Parliament to adopt this rule:
Canada, as is well known, imprisons a great deal, perhaps even too much. This observation, which is not new, has in recent years given rise to a growing number of studies demonstrating the « harshness and ineffectiveness » of imprisonment as well as its astronomical costs.
This is the « principle of judicial restraint » or of « restraint in the use of imprisonment. » Under this principle, imprisonment is an exceptional measure whose use is reserved for situations where it is necessary. [Our translation]
The judge must therefore seek « to determine the sentence that is just and the least restrictive of liberty in the circumstances. » This principle applies with particular force to young first-time offenders, for whom rehabilitation remains the primary objective, and to Indigenous offenders, for whom paragraph 718.2(e) requires consideration of all available sanctions other than imprisonment that are reasonable in the circumstances.
Before imposing prison, the judge has a legal obligation to consider each of the less restrictive sanctions and to explain why they are not appropriate
The gradation of sentences in criminal law
The table below presents, from the least restrictive to the most severe, the sanctions a court may impose in Canadian criminal law. Several of them can be combined, for example a fine and probation, or a term of imprisonment followed by a period of probation.
| Sanction | What it involves |
|---|---|
| Absolute discharge (s. 730 Cr. C.) | The court finds the person guilty but enters no conviction. The person has no conditions to comply with and does not end up with a criminal record; the entry is removed from federal records after one year. Available only for offences without a mandatory minimum and punishable by less than 14 years of imprisonment, where a discharge is in the accused’s best interests and not contrary to the public interest. |
| Conditional discharge (s. 730 Cr. C.) | Same effects, but the person must comply with a probation order of up to three years (for example: keep the peace, attend therapy, perform community service). If the conditions are met, no conviction is entered; the entry disappears after three years. |
| Suspended sentence (s. 731(1)(a) Cr. C.) | A conviction is entered on the criminal record, but the court suspends the passing of sentence and releases the person on a probation order of up to three years. In the event of a breach, the person can be brought back before the court for a sentence to be imposed. |
| Fine (s. 734 Cr. C.) | A sum of money payable to the State, alone or in addition to another sentence. It may be combined with probation. |
| Community service (s. 732.1(3)(f) Cr. C.) | A condition of a probation order under which the person performs up to 240 hours of unpaid work for the community, within a period of no more than 18 months. It often accompanies a conditional discharge or a suspended sentence. |
| Imprisonment in the community (conditional sentence, s. 742.1 Cr. C.) | A sentence of imprisonment of less than two years served at home rather than in custody, under strict conditions (house arrest, curfew, supervision). Available only if the offence carries no mandatory minimum, if the person does not endanger the safety of the community and if the sentence is consistent with the sentencing objectives. Any breach can lead to incarceration for the remainder of the sentence. |
| Intermittent imprisonment (s. 732 Cr. C.) | A sentence of imprisonment of 90 days or less served in periods, generally on weekends, which allows the person to keep their job or studies. It is accompanied by a probation order that applies between the periods of detention. |
| Provincial imprisonment | A sentence of imprisonment of less than two years, served in a Quebec detention facility. It may be followed by probation of up to three years. Eligibility for parole after one-sixth of the sentence (for sentences of six months or more) and at one-third, subject to the applicable rules. |
| Federal imprisonment | A sentence of imprisonment of two years or more, up to life imprisonment, served in a federal penitentiary. No probation may be added to it. Parole is governed by the Parole Board of Canada. |
Some measures, such as a probation order, a restitution order in favour of the victim, a prohibition on possessing weapons or driving, or registration on the sex offender registry, are not stand-alone sentences but are added to the sanctions above depending on the offence.
The first two sanctions on this list do not result in a criminal record: they are reserved for people who are generally facing a first offence and for whom a conviction would have disproportionate consequences
What this means for the accused
The gradation of sentences is not a mere list: it imposes an order of consideration on the judge. A person who pleads guilty or is found guilty therefore has every interest in having the defence document everything that can justify a sanction as low as possible on the scale: no criminal record, young age, stable employment, therapy undertaken, remorse, reparation of the harm, support from family and friends, and the particularly heavy effects a conviction or incarceration would have on their situation. These elements cannot be improvised at the hearing; they are prepared in advance, often with a pre-sentence report or expert assessments.
Conversely, some offences carry mandatory minimum sentences that rule out the least restrictive sanctions from the outset. Even in those cases, the constitutionality of the mandatory minimum can sometimes be challenged, as our article on the Senneville decision illustrates.
A free information session with Me Alexandre Lacroix
Between a discharge and the penitentiary, the gap is immense, and the court’s choice depends largely on the evidence and arguments presented by the defence. Me Alexandre Lacroix, criminal defence lawyer, offers a free information session to assess your case, identify the sanction you can reasonably aim for and prepare the steps that will support it before the court.
This blog post is provided for general informational purposes only and does not constitute legal advice. Every situation is unique — consult a legal professional for advice tailored to your case.
Discharge
Impacts of a Criminal Record
Child Pornography: The Mandatory Minimum and the Senneville Decision
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