Resolving Criminal Matters Prior to Trial (1:VI)

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on 1 August 2026.

It is important to review the elements of the alleged offence to ensure an understanding of what the accused person is charged with.

A. Stay of proceedings

After reviewing the police report, if there is not a substantial likelihood of conviction, or it would not be in the public interest to proceed, a letter can be drafted to the assigned Crown Counsel requesting that they enter a stay of proceedings. The contact information for the assigned Crown can be obtained by calling the Crown Counsel office in the city in which the charge was laid. Regardless of the strength of the case, if it appears that it is not in the public interest to proceed with the charges (e.g., the accused person is terminally ill, or the accused person has taken substantial steps toward rehabilitation), the Crown may choose to reconsider. A stay of proceedings is a decision to not proceed with the charges. A stay of proceedings appears on the accused person's Vulnerable Sector Criminal Record Check. Therefore, even if a stay of proceedings is entered, the charge may still affect the accused's employment if they intend to work with children or seniors.

B. Diversion / Alternative measures

Diversion allows for an accused person to be "diverted away" from the court system. The program's official name is Alternative Measures (Criminal Code, s 717). Every criminal case should begin with considering a diversion proposal; however, the program is primarily designed for accused persons who are prepared to take responsibility for their actions and express remorse. Other factors, such as an accused person's lack of prior convictions, may increase their likelihood of being accepted for diversion. The accused person or their counsel may make a request to the Crown Counsel office to be "diverted". In some cases, Crown Counsel may also recommend diversion. The diversion proposal itself may be made before or after a charge is laid. It is important to note that although diversion involves the accused person taking responsibility and expressing remorse for their actions, a proposal for diversion and any conversations about diversion with the Crown or a probation officer do not constitute a guilty plea. If the accused person admits to the offence in front of a probation officer, that officer is not permitted to testify against the accused person should the Crown choose to reject the diversion proposal and continue prosecuting the charges.

There are three ways for an accused person and their counsel to approach diversion:

1. Community correction

An accused person or their counsel can contact the Crown and inform them that the accused person wants to take responsibility for their actions and pursue diversion. If the Crown decides that the accused person is a good candidate for diversion, they will send the file to a probation officer. The probation officer will review the circumstances and then discuss the matter with the accused person. The accused person is entitled to have legal counsel present at this meeting. If the accused person takes responsibility for their actions and expresses remorse, and the probation officer is satisfied that the accused person is an appropriate candidate for diversion, the Crown will be so advised. As part of the diversion process, the accused person may be directed to write an apology letter to the victim, undergo anger or stress management counselling, or make restitution. The criminal matter will likely be adjourned to allow the accused person to complete the diversion process. The Crown will either enter a stay of proceedings or withdraw the charges once diversion has been completed.

2. Indigenous Justice Programs

Indigenous accused persons, their counsel, or the Crown can contact an Indigenous Justice Program (IJP) in the accused person's community. This option allows Indigenous accused persons to complete diversion in a culturally safer setting, rather than with a Crown-appointed probation officer. IJP diversion workers connect Indigenous accused persons with Elders in their community and help them take part in culturally appropriate healing plans. If an Indigenous accused person wants to take responsibility for their actions and pursue diversion through an IJP, the best practice is for them or their counsel to first contact the IJP and create a healing plan. Once they have done so, the Indigenous accused person or their counsel should contact the Crown to request permission to pursue diversion through an IJP and note that they have already been in touch with the IJP in question to discuss their healing plan. If the Crown consents, the criminal matter will likely be adjourned to allow the accused person to complete the diversion process. The Crown will either enter a stay of proceedings or withdraw the charges once diversion has been completed. Indigenous accused persons and their counsel can use the following link to find an IJP in their community:

https://indigenousjustice.ca/map/

NOTE: Some IJPs, such as the Vancouver Aboriginal Transformative Justice Society, only accept diversion referrals from the Crown and police, rather than from the accused person or their counsel.

3. Self-directed diversion

Self-directed diversion is a good option for accused persons who need to plan their rehabilitative efforts around their full-time job or other commitments. In self-directed diversion, the accused person and their counsel form a diversion plan independently, before the accused person's counsel informs the Crown of their plan and requests permission to go through with it. Because a self-directed diversion plan is formed by the individual accused person and their counsel, it has the potential to be more personalized than one that is dictated by a probation officer. Where applicable, a self-directed diversion plan can include counselling sessions, addiction treatment, and volunteerism within the accused person's religious community. Unlike community correction diversion, the cost of any counselling, therapy, or other rehabilitative measures will be borne by the accused person in self-directed diversion. If the Crown consents to the proposed diversion plan, the criminal matter will likely be adjourned to allow the accused person to complete the diversion process. The Crown will either enter a stay of proceedings or withdraw the charges once diversion has been completed.

If an accused person wants to pursue diversion, their counsel should send an application letter to the Crown. Note that in an IJP or self-directed diversion application, the accused and their counsel should have already contacted the IJP and/or formulated a diversion plan before applying to the Crown. It is advised to call Crown in advance of sending the diversion application to make sure they are open to it. Include the following in the application:

that the letter is Without Prejudice,
the background of the accused person, including any mitigating circumstances that underlie the commission of the offence such as poverty, mental illness, grief, or addiction,
the effect that a criminal record would have on the accused person,
the accused person's feelings of remorse or repentance for the offence,
any significant issues with the Crown's case, such as reluctant witnesses, serious Charter breaches, or the age of the case,
the details of the accused person's self-directed diversion plan (for self-directed diversion only), and
the IJP that the accused person's lawyer has contacted (for IJP diversion only).

The accused person must express remorse for their commission. They should offer in the diversion letter where applicable, to write a letter of apology, undergo anger or stress management counselling, or make restitution. These options should be considered with the Crown, if possible.

The diversion process does not directly affect the ordinary procedure for remand and fixing a trial date. There is nothing inconsistent with both fixing a trial date and writing a letter of application for diversion. Where an accused has not yet been determined to be an appropriate candidate for diversion, the court is unlikely to grant an adjournment for the purpose of considering diversion. That is, unless Crown Counsel tells the court that they believe diversion is likely to occur.

See Appendix C for an example of an application for diversion.

C. Peace bond (s 810)

A peace bond is a court order requiring a specific individual to "keep the peace and be of good behaviour". A peace bond is not a conviction or a guilty plea; however, a peace bond can restrict an accused person's liberty. Peace bonds are sometimes used as alternatives to criminal charges like uttering threats (Criminal Code, s 264.1), criminal harassment (s 264), and minor assaults (s 266). The benefit to the accused person is that formal criminal charges are dropped. The benefit to the complainant is that the no-contact condition of a peace bond addresses their concerns without raising the uncertainty and possible trauma of a trial.

Under section 810 of the Criminal Code, the accused person enters into a binding legal promise with conditions. In addition to requiring that the recipient "keep the peace and be of good behaviour", a peace bond will also set out specific conditions intended to protect a person or a specific type of property, such as not to contact certain persons and/or not to attend a certain address or area. These conditions can last up to one year, and the length of the term can be negotiated with the Crown. Although a peace bond is not itself a criminal conviction, breaching a peace bond is a separate criminal offence.

In order for a peace bond to be imposed, there must exist reasonable grounds for the complainant to believe that the accused person will cause personal injury to the complainant or their spouse or child, or that they will cause damage to the complainant's property at the time of the peace bond proceedings. Therefore, in entering into a peace bond voluntarily, the accused person is conceding that the complainant has reasonable grounds for their fear. The accused person does not have to admit to all the facts in the Report to Crown Counsel, but they do have to admit to sufficient facts to form a reasonable basis for the complainant to fear them. If there are facts that are in dispute, discuss this with Crown first. If both sides come to an agreement, the court process is similar to a sentencing hearing in terms of the submissions that are made. For more information, see the section on Pleading Guilty, below.

Occasionally, such as when the Crown wishes to impose a peace bond and the accused does not agree, there will be a full hearing on the issue. The Crown often considers peace bonds in cases of spousal assault because of a complainant's reluctance to go to trial. At the hearing, the Crown must prove on a balance of probabilities that there are reasonable grounds for the complainant's fear. Hearsay evidence is allowed, as it relates to the informant's belief that there are grounds for their fear (R. v. P.A.O., 2002 BCPC 597). Since there is no criminal standard of proof, the judge must look at all the evidence and not focus merely on the absence of the offending conduct (R. v. Dol, 2004 BCSC 1438).

If a bonded person breaches the peace bond, a criminal charge may be laid against them. An accused person should be advised that while a peace bond is not a criminal record, it may affect future hearings, travel outside the country, and decisions concerning custody. Peace bonds will appear on a Vulnerable Sector criminal record check, which can affect the bonded person's ability to work with vulnerable populations such as children or the elderly.

D. Pleading guilty

A guilty plea is appropriate only when all of the below are true:

diversion is not granted,
a peace bond is not appropriate,
the accused person admits guilt,
it appears that the Crown will be able to prove its case, and
the accused person wishes to plead guilty.

Section 606 of the Criminal Code outlines the conditions that need to be met for a court to accept a guilty plea. These include that:

the accused person is making the plea voluntarily,
the accused person understands that the plea is an admission of the essential elements of the offence, the nature and consequences of the plea, and that the court is not bound by any agreement made between the accused person and the prosecutor, and
the facts support the charge.

The court has an obligation to ensure that the accused person is aware of section 606 before accepting any guilty plea. The court should canvass these matters directly with the accused person, unless the accused is represented by legal counsel who assures the court that section 606 has been canvassed. Legal counsel should canvass these matters with the client prior to their guilty plea and take detailed notes of this interaction. If there is any doubt about their client's understanding of this interaction, counsel should have the court canvass section 606 directly with the accused person.

Consequences of a guilty plea may include, but are not necessarily limited to:

difficulty entering the US,
consequences in current or future employment,
possible use of the conviction in subsequent legal proceedings such as family law and custody disputes, and
consequences for the accused person's immigration status if they are not a Canadian citizen.

NOTE: Legal counsel should bear in mind that accused persons sometimes desire to change their plea after entering a guilty plea and may blame counsel for failing to advise them about the consequences of their plea. An accused person may retain new counsel and make an application to set aside the entered guilty plea. In such a situation, solicitor-client privilege will usually be set aside, and the lawyer may be forced to testify as to why they believed their former client understood the consequences of the guilty plea (see R. v. Lam, 2020 BCCA 276).

E. Sentencing hearing

The sentencing hearing can either proceed immediately after a guilty plea is entered or be adjourned to permit the parties to prepare for the sentencing hearing. Duty counsel can assist self-represented accused persons with a sentencing negotiation with the Crown. Before pleading guilty, it is generally a good strategy to talk to Crown about the possibility of a joint submission where both sides agree on a sentence. Most Crown Counsel will agree to a reasonable joint sentencing position and will often stay some charges on a multi-count Information in exchange for a guilty plea on others. It is important to know that the judge is not bound by a joint submission, meaning that even if the accused person and the Crown agree on a possible sentence, the court might not follow their recommendation (see R. v. Anthony‑Cook, 2016 SCC 43). See Appendix D: How to Prepare for and Conduct a Sentencing Hearing for the process of a guilty plea.

The statutory range for all sentences is in the Criminal Code. Always check the statutory range that existed at the time of the offence, as well as at the time of sentencing, as the accused person is entitled to the more favourable of the two. Ensure the minimum sentence has not been struck down by a successful Charter challenge or is about to be abolished by an act of Parliament.

It is important to consult sections 718 and 718.2 of the Criminal Code for the principles in sentencing that the judge will consider and to address these issues when drafting submissions. The accused person should also read up to section 743.1 of the Criminal Code before any sentencing hearing, where various consequences and conditions for various sentences are outlined.

Prior to the sentencing hearing, the accused person and their counsel should review the Report to Crown Counsel to determine whether they agree with the circumstances of the offence as set out in that document (see Section IV.F.3). The Report to Crown Counsel is typically the document from which Crown Counsel will read/summarize the facts of the offence. If the accused person disagrees with a material aggravating fact summarized in the Report to Crown Counsel, or if the accused person has substantial mitigating facts that are not contained in the Report to Crown Counsel (i.e., duress, significant intoxication, or mental illness), the disputed facts should be canvassed with Crown Counsel. Aggravating facts will prompt the court to give longer sentences, whereas mitigating facts will prompt the court to give shorter sentences (see Criminal Code, s 718.2). Effective 15 July 2026, the Bail and Sentencing Reform Act, S.C. 2026, c. 11, added or expanded aggravating factors under s. 718.2, including where: the offender is a repeat violent offender with a prior conviction for a violent offence within the last five years, the victim is a first responder or public transit worker; the offence involves organized retail theft; or the offence interferes with essential infrastructure (e.g., copper theft). Where the parties cannot agree on the facts, the party seeking to establish the particular (aggravating or mitigating) fact must present evidence of the disputed facts (see Criminal Code, s 724(3) for how the court determines disputed facts).

Note: Sometimes this will occur in the moment where Crown Counsel summarizes an aggravating fact during their sentencing submissions and the accused person and their counsel realizes only then that an aggravating fact was not agreed upon. This may also occur in the process of the defence's submissions when a mitigating circumstance is summarized.

Pre-sentence reports (PSRs)

For serious offences, prior to the actual sentencing hearing, the accused person or their counsel should consider whether the accused person would benefit from seeking a Pre-Sentence Report (PSR) under section 721 of the Criminal Code. A PSR can only be ordered after a guilty plea or finding is made. It is prepared by a probation officer and is considered a "neutral third party" report. It is a formal report and can help or harm the interests of the accused person. If the accused person is experiencing mental health issues, the PSR can include a psychological report. A favourable psychological report can reduce an accused person's eventual prison sentence. A psychological disorder that makes a person more likely to lose control of their emotions or impulses mitigates the moral culpability of an offender for offences where that emotion or impulse contributed to the occurrence of the offence. Where an accused person desires to obtain a psychological opinion, they should consider obtaining a private psychological report from a psychologist of the guilty person's choosing instead of a PSR with a psychological component. A private psychological report commissioned by the accused person or their counsel has the advantage of being legally privileged and is only disclosed if it helps the accused. This avoids the possibility that exists with a PSR that the contents of the report will suggest that the offender has limited prospects of rehabilitation, thereby supporting a lengthier custodial sentence.

Hearing procedure

Crown presents their submissions in the sentencing hearing first. Assuming that there is no substantial disagreement on the facts of the offence, Crown Counsel will begin by reading the facts (either from the Report to Crown Counsel or from the agreed statement of facts). Next, the Crown will state the sentence they are seeking, and give the legal basis for that sentence. The accused person or their counsel will do the same in reply.

After hearing Crown recommendations and defence submissions, the judge will invite the accused person to comment or speak personally. Accused persons should be aware that they will be invited to speak after their defence counsel finishes their submissions, and that there is no obligation to say anything. However, it is usually beneficial for an accused person to express remorse. Following the accused person's opportunity to personally speak to the court, the judge will give a sentence. For more on the substance and procedure of speaking to sentence, see Appendix D: How to Prepare for and Conduct a Sentencing Hearing.

Defence strategies

There are two common strategies for presenting the circumstances of an accused person. One strategy is to present the lead-up to the offence as a unique set of unusual circumstances that caused a momentary and exceptional loss of control and explain what has changed in the accused person's life to avoid a similar set of unusual and exceptional circumstances. This establishes that the problem has already been resolved and will not recur, and that a harsh sentence is unnecessary. Another strategy is to highlight the disadvantageous life circumstances, such as lack of family support, lack of employment or educational opportunities, mental illness, or addiction, which contributed to the commission of the offence. These are mitigating factors which lessen the accused person's moral culpability for their conduct.

Consecutive and concurrent sentences

In cases where there are two or more charges, a judge may order that sentences be served consecutively (one after the other) or concurrently (at the same time). Crown may seek consecutive sentences under Criminal Code, s 718.3(4). The legal test for a concurrent sentence is whether or not the two criminal acts were part of a linked series of acts within a single endeavour (R. v. Li, 2009 BCCA 85 at para 43).

In cases where a judge finds it appropriate to impose consecutive sentences, they must ensure that the entirety of the sentence is not excessive, in keeping with the Totality Principle. According to this principle, the global sentence imposed by the judge must be proportionate to the gravity of the offences and the degree of responsibility of the offender. The sentence must also respect the principle of parity, which requires that similar sentences are imposed for similar offences committed by similar offenders in similar circumstances. For the Supreme Court's recent position on consecutive vs. concurrent parole ineligibility periods, which speaks to the Charter issues in sentencing, see R. v. Bissonnette, 2022 SCC 23. Effective 15 July 2026, the Bail and Sentencing Reform Act, S.C. 2026, c. 11, requires that a sentence for extortion be served consecutively to a sentence for arson, and that a sentence for violent or organized-crime-related auto theft be served consecutively to a sentence for break and enter. It also requires a sentencing judge to consider consecutive sentences for repeat violent offenders in certain cases, and requires primary consideration of denunciation and deterrence for second or subsequent convictions of violent auto theft, break and enter, and any organized-crime related offence.

The judge must also consider any pretrial time spent in custody as a result of the charges and will usually credit such time towards the proper sentence at a ratio of 1.5 days credited for every 1 day spent in pretrial custody.

1. Gladue reports

Where the offender is Indigenous, reference must be made to section 718.2(e) of the Criminal Code and the principles laid out in R. v. Gladue, [1999] 1 SCR 688. Section 718.2(e) of the Criminal Code states that judges must pay attention to the circumstances of Aboriginal offenders. It was implemented in 1996 in an attempt to address the over-representation of Indigenous Peoples within Canadian prisons. Gladue followed shortly thereafter in 1999 and established that judges must consider Gladue principles when making decisions in cases with Indigenous offenders. This means that a judge must consider the circumstances that have brought the accused person before the court; particularly, they must consider the impact of Canadian colonization, discrimination, and oppression on Indigenous accused persons and their families. This can include consideration of the ways in which the Canadian state's abusive and genocidal policies of residential schooling, land theft, and displacement, among others, created conditions which contributed to the Indigenous accused person's commission of the crime they are being sentenced for. As the Supreme Court noted in R. v. Ipeelee, 2012 SCC 13, Gladue sentencing principles are not a "race-based discount." Rather, they were put in place in recognition that the Canadian state bears responsibility for the overrepresentation of Indigenous people in Canadian prisons, both because the Canadian state created conditions in Indigenous communities that lead to crime, and because the Canadian legal system is forcing its laws and punishments onto groups of people who existed on this land long before it did. The Supreme Court in Gladue specifically outlined that sentencing judges must pay attention to: first, the unique systemic or background factors which may have played a part in bringing the particular Indigenous person before the courts; and second, the types of sentencing procedures and sanctions which may be appropriate in the circumstances for the person because of their particular Indigenous heritage or connection.

The Crown, defence counsel, and the Indigenous individual must give the judge the information they need to make an assessment based on Gladue principles. This can be done through a Gladue report, which is a report that lays out a holistic profile of an Indigenous individual and how they have come to be before the court. These reports are based on interviews with the individual, friends, family, and community members as well as information about their family background and the effect of colonization. A Gladue report is different than a Pre-Sentencing Report and should be prepared by someone with experience preparing these reports and insight into Indigenous communities. The BC First Nations Justice Council has provincial responsibility for Gladue services and offers the opportunity to request a Gladue report from a roster of experienced Gladue report writers: https://bcfnjc.com/information-for-the-public/.

It is important to note that lawyers have an obligation to bring information relevant to Gladue principles before the court in every case involving an Indigenous accused person, even if there is no Gladue report present. Judges have an obligation to provide an explanation of how they applied Gladue principles in sentencing. Simply referencing Gladue principles without applying them is not sufficient. Gladue principles apply to all offences under the Criminal Code.

For further information on Gladue principles and reports see the Gladue Report Guide published by the Legal Services Society in collaboration with the BC First Nations Justice Council: https://bcfnjc.com/wp-content/uploads/2021/03/Gladue-Submission-Guide-Legal-Aid-BC.pdf.

2. Impact of Race and Cultural Assessment

Impact of Race and Cultural Assessment (IRCA) reports are pre-sentencing reports that provide cultural context to judges to consider when sentencing racialized accused persons. IRCAs are similar to Gladue reports. They inform judges of the accused person's experience of discrimination, including factors such as systemic racism or other barriers the accused has experienced due to being racialized. IRCAs explain how those factors have influenced the circumstances surrounding the accused person's offence and their experience with the justice system. These reports have been primarily used for Black Canadians.

These reports might incorporate accountability measures that are culturally appropriate into an incarceration sentence or offer alternatives to incarceration.

The Government of Canada announced funding for IRCA reports to Legal Aid Services across Canada for self-identified racialized individuals in 2021. The reports are generally limited to Legal Aid clients facing jail sentences of two or more years or youth offenders facing custodial sentences. Cases that do not fit that description are decided by Legal Aid BC on a case by case basis after rules surrounding the reports were relaxed in 2024.

Legal Aid BC has a list of approved assessors. If an accused person or their counsel wishes to receive an assessment, they can contact Legal Aid BC as only Legal Aid Lawyers are able to request a report. For further information, you can contact Legal Aid BC at irca@legalaid.bc.ca. If a racialized accused person does not have an IRCA, they can still personally tell the court about the impact of race and culture on their experience.

F. Types of sentences

1. Absolute and conditional discharges

Discharges are outlined in section 730 of the Criminal Code:

Discharges are available if the accused person is not subject to a minimum penalty and the offence is not one punishable with a maximum sentence of 14 years of imprisonment or more.
A discharge means that there has been a finding of guilt rather than a conviction. At the end of the discharge period, the accused person has no criminal record.
The discharge must be in the best interests of the accused person and not be against the public interest.
An absolute discharge means that the accused person will have no criminal record after being sentenced.
A conditional discharge means that the accused person is on probation, with certain conditions, for a period of time. If the accused person follows the conditions, then at the end of the probation period they are treated as if there was no conviction and they will not have a criminal record.
An absolute discharge is granted immediately without terms or conditions, whereas the effect of a conditional discharge is that the accused person is on probation for a period of time. This can involve various conditions by which the accused person must abide. If the accused person successfully completes the period of probation with no breaches or further criminal offences, the conviction is discharged, and the offender can say they have no prior convictions. It is important to note, however, that an absolute or conditional discharge still requires a finding of guilt.
Both an absolute discharge and a conditional discharge (as well as the probation order that accompanies it) will be visible on some background checks, including vulnerable sector checks, for several months after they are entered into/the probation order ends. However, the guilty party still does not have a criminal record.

NOTE: Each of the sentences listed below results in a conviction and a criminal record.

2. Suspended sentences and probation

If the judge believes, having regard to the age, character, and personal circumstances of the individual, that the accused can rehabilitate themselves, the judge can suspend the passing of sentence and release the accused person subject to the terms of a probation order of up to three years (Criminal Code, s 731(1)(a)). This does not mean that the accused has been acquitted; the accused person will have a criminal record.

This sentence is only available if the accused person is not subject to a minimum penalty. Probation means that the accused person must follow certain conditions that the judge sets. For example, the accused person will have to stay out of trouble, report to a probation officer (someone who keeps track of the accused person), and obey other court-imposed conditions. An order for a suspended sentence means that the courts suspend the passing of a sentence for the duration of the probation period. If a person breaches the conditions of a suspended sentence the court may extend the length of the probation period or (in rare cases) revoke the suspension of sentence and substitute a jail sentence for the suspended sentence. In addition, the breach is a new criminal offence, and the accused person may be charged with a breach of the probation conditions.

3. Fines

Under section 734(1) of the Criminal Code, a fine may be imposed in lieu of another punishment for any offence for which there is no minimum term of imprisonment; where the offence carries a minimum term of imprisonment, a fine may only be imposed in addition to, not instead of, that minimum term.

A fine can be ordered on its own or in addition to probation or imprisonment (but not both). An accused person may be fined up to $5,000 for summary conviction offences (or a hybrid offence where the Crown elects to proceed summarily), or any amount for indictable offences. Before a court imposes a fine, it must inquire into the ability of the accused to pay the fine.

4. Restitution and compensation

Restitution orders can be made as "stand-alone" orders imposed as an additional sentence (Criminal Code, s 738) or as a condition of probation or conditional sentence order by the court. The restitution can be ordered for the cost of repairing any property damage, replacing lost or stolen property, or any physical or psychological injuries suffered by a victim that required the victim to incur out of pocket expenses or resulted in a loss of income.

5. Conditional sentence order (CSO)

This is a jail sentence and occurs when a court orders the accused person to serve their jail sentence in the community. It is not available when there is a minimum sentence of imprisonment, when there is a term of imprisonment of two years or more imposed, or for attempted murder, torture, advocating genocide, or for a terrorism offence or criminal-organization-related offence prosecuted by indictment with a maximum penalty of 10 years or more (see Criminal Code, s. 742.1). Effective 15 July 2026, it is also unavailable, where prosecuted by indictment, for sexual assault offences involving any victim, and for offences of a sexual nature or committed for a sexual purpose involving a victim under 18 (see Criminal Code, s. 742.1).

The term "conditional" refers to rules the offender must follow in order to remain out of jail. The conditions are often similar to conditions imposed in a probation order; however, a curfew is almost always imposed. An accused that breaches any of their conditions or commits a new crime may be ordered to complete the remaining portion of the CSO in prison.

6. Imprisonment (jail)

Unless otherwise stated by statute, if the offence is a summary conviction offence (or Crown elects to proceed summarily), the maximum term of imprisonment is two years less a day; and if the offence is an indictable offence (or the Crown elects to proceed by indictment), the maximum term of imprisonment is 5 years. There are many offences where the maximum sentence available is in excess of 5 years. A judge has the discretion to order a sentence to be served concurrently (at the same time) or consecutively (one after the other) with any other sentence the accused person is serving, or any other sentence arising out of the same transaction.

If the total sentence is two years or more, the accused person will serve their sentence in a federal penitentiary. If the total sentence is less than two years, the accused person will serve their sentence in a provincial correctional centre. An accused person should note that "two years" includes time already served before trial. A person who is sentenced to two years less a day of imprisonment but has already served one year of that sentence while awaiting their trial will be sent to a provincial correctional centre. If the sentence is provincial, a sentence of probation for up to 3 years can be added. If the sentence is federal, the court cannot add a probationary order to that sentence.

If a judge imposes a sentence not exceeding 90 days, they may order that the sentence be served intermittently on certain days of the week or month. The accused person is released on the other days, subject to conditions of a probation order.

G. Matters ancillary to sentencing

1. DNA Data Bank

If an individual is convicted of a "primary designated offence" enumerated in Section 487.04 of the Criminal Code – for example, sexual interference (s 151) and sexual exploitation (s 153) – a court must order the taking of bodily substances for the purposes of forensic DNA analysis, unless the impact on the person's privacy would be "grossly disproportionate" to the public interest.

The court may also consider the individual's criminal record, the nature of the offence, and the circumstances surrounding its commission. The court may also, at its discretion, make a DNA order upon conviction or discharge of a "secondary designated offence" – such as assault (s 265) – but the threshold for obtaining a DNA order is higher for these offences. Once the substance is analyzed, it is then entered into the Convicted Offender Index of the national DNA Data Bank. The data bank is widely used for many different types of crimes ranging from violent crimes to fraud involving impersonation.

2. Driving prohibitions and contempt penalty

Effective 15 July 2026, the Bail and Sentencing Reform Act, S.C. 2026, c. 11, restored the court's power to order a driving prohibition for manslaughter and criminal negligence causing death or bodily harm (a power removed in 2018), and raised the maximum penalty for contempt under s. 708 (failing to attend or remain in court to give evidence) from $100 and/or 90 days to $5,000 and/or two years less a day.

3. Victim fine surcharge

A victim surcharge is an additional penalty imposed on convicted offenders at the time of sentencing.

In R. v. Boudreault, 2018 SCC 58, the Supreme Court of Canada considered the constitutionality of section 737 of the Criminal Code, which removed any judicial discretion to waive the Victim Fine Surcharge. The court ruled that a mandatory victim surcharge amounted to cruel and unusual punishment contrary to section 12 of the Charter and that "its impact and effects create circumstances that are grossly disproportionate to what otherwise would be a fit sentence, outrage the standards of decency, and are both abhorrent and intolerable." The court decided that section 737 was not justified under section 1 of the Charter and declared that section 737 was of no force or effect. As a result, the courts have discretion to waive the surcharge in appropriate circumstances. The primary reason for waiver of the surcharge is lack of ability to pay.

The current section 737 of the Criminal Code re-introduces the requirement that judges apply the victim surcharge to all convictions and discharges. However, the court has the discretion to waive the victim surcharge in the event that it would cause undue hardship on the offender, or would be disproportionate to the gravity of the offence or the degree of responsibility of the offender. Where the surcharge is waived, the court must provide reasons for doing so.