What is a suspended sentence in Ontario?

What is a suspended sentence? It is a sentencing option available after a conviction where the judge suspends passing sentence and releases the offender on a probation order, rather than imposing jail or a fine at that time. Under section 731(1)(a) of the Criminal Code of Canada, this option is available only where no minimum punishment is prescribed by law.

A suspended sentence is a sentence imposed on conviction for a criminal offence that the court orders to be deferred so that the offender can serve probation. A suspended sentence will in addition, be a permanent entry on the offenders criminal record.

— Jeffrey I. Reisman, criminal defence lawyer

The Criminal Code terminology is that the court “suspends the passing of sentence.” It is still a conviction, not a discharge. A conviction can affect criminal-record checks, travel, employment and professional applications, although a person may later be eligible to apply for a record suspension under the Criminal Records Act. For more on the terminology, see what does 2 year suspended sentence mean.

A suspended sentence in Ontario therefore does not mean that the charge disappeared or that the court found the person not guilty. It means the judge chose probation-only sentencing after considering the particular offence and offender.

Who decides whether to give a suspended sentence?

The judge decides what the sentence will be, not the Crown Attorney. The Crown can recommend a sentence and the defence can seek a different result, but the judge must impose a lawful and fit sentence based on the evidence, sentencing principles and applicable cases.

At an Ontario sentencing hearing, the Crown Attorney commonly describes the facts, criminal record, victim impact where applicable, aggravating features and the sentence sought. Defence counsel can respond with mitigating evidence, letters, treatment information, restitution evidence and comparable court decisions. A joint position from the Crown and defence receives significant consideration, but the judge is not automatically bound by it.

The issues may be straightforward in some cases and contested in others. Reviewing the relevant practice areas of jeffrey i reisman can help a person understand the type of criminal charge and the court process involved before sentencing.

When can a judge give a suspended sentence?

A judge can consider a suspended sentence when the offence has no mandatory minimum punishment and probation-only sentencing is fit for the offence and the offender. There is no fixed list of charges that always receive this outcome.

Section 731 of the Criminal Code bars a suspended sentence where a minimum punishment is prescribed. Where it is legally available, the court considers the seriousness of the conduct, harm caused, whether the offence was planned, the person’s role, prior record, prospects for rehabilitation, deterrence and protection of the public.

Being a first-time offender does not guarantee that a person will avoid jail. A first offender who committed a serious, violent, planned or trust-based offence may face a sentence other than probation-only. Conversely, a lack of prior record can be important when combined with genuine rehabilitation and facts at the lower end of an offence’s range.

What crimes may result in a suspended sentence?

Assault, mischief, theft and fraud are not automatically eligible or ineligible for a suspended sentence. The precise charge, the facts, any applicable minimum punishment and the fit sentence in the circumstances determine whether probation-only sentencing is available.

Can assault charges result in a suspended sentence?

Some assault convictions may result in a suspended sentence, but violence, injuries, weapons, intimate-partner context and prior violence can make jail more likely. Simple assault covers a wide range of conduct, so the surrounding facts matter greatly.

For example, consider a person with no record who pleads guilty to a simple assault after pushing another person during a brief argument outside a restaurant, causing no lasting injury. Prompt counselling, a realistic expression of remorse, and compliance with a no-contact condition may be relevant at sentencing. That does not decide the outcome, particularly if there are aggravating facts not apparent from the example.

Can mischief charges result in a suspended sentence?

A suspended sentence may be considered for mischief where the damage, intent and personal circumstances support probation-only sentencing. Significant property damage, repeated conduct, a targeted victim or breach of trust can increase the seriousness of the case.

For example, a person who damages a former roommate’s door during an emotional dispute may face a different sentencing analysis if they promptly pay for repairs, attend counselling and have no record than someone who repeatedly damages property to intimidate another person. Restitution can be relevant, but it does not erase the offence.

Can theft or fraud charges result in a suspended sentence?

Suspended sentences for theft and fraud charges may be available in some cases, especially at the lower end of seriousness, but the amount, planning, breach of trust and loss to victims are important. Fraud involving an employer, vulnerable person, repeated deception or substantial loss can attract a more serious sentence.

Consider someone charged with theft under $5,000 after taking merchandise from a store during a period of financial and mental-health difficulty. Evidence of treatment, repayment where appropriate, stable employment and no prior record may assist the court in assessing rehabilitation. Those factors must be genuine and do not guarantee a particular sentence.

What mitigating factors matter at sentencing?

Mitigating factors can reduce moral blameworthiness or show rehabilitation, but they must be genuine, supported by evidence and connected to the case. They do not excuse the offence, and they are weighed against aggravating facts such as serious harm, planning, a breach of trust or a relevant criminal record.

Before sentencing, a person and their lawyer may prepare:

• an accurate account of any prior criminal record and compliance with earlier court orders;
• the timing and circumstances of a guilty plea, including whether it avoided a trial;
• proof of restitution or compensation where appropriate and affordable;
• counselling, addiction treatment, anger-management or mental-health records that relate to the conduct;
• employment, education, caregiving and community-support information;
• reference letters from people who know the person well and understand the offence; and
• a thoughtful expression of remorse and an explanation of practical steps taken to prevent reoffending.

Do not start a program merely to create a document for court. The court will look at whether the work is meaningful, whether the provider is credible and whether the plan addresses the circumstances that led to the offence.

What probation conditions come with a suspended sentence?

A suspended sentence includes a probation order, and the person must follow every condition in the written order. Section 732.1 of the Criminal Code requires probation orders to include a condition to keep the peace and be of good behaviour.

Depending on the case, other conditions may require a person to report to a probation officer, attend counselling, avoid contact with a named person, stay away from a location, avoid alcohol or drugs, complete community service, pay restitution, or live at an approved address. Conditions should be realistic, necessary and clearly understood before the person leaves court.

The distinction between the sentence and the order can be confusing. Read more about suspended sentence probation and keep a copy of the signed order in an accessible place.

Can a suspended sentence be revoked?

A suspended sentence can be revoked if the person is convicted of a new offence during the probation period, including failing to comply with probation. Failing, without reasonable excuse, to comply with a probation order is an offence under section 733.1 of the Criminal Code.

After the relevant conviction is final, the prosecutor may seek action under section 732.2 of the Criminal Code. The court may revoke the suspension and sentence the person for the original offence, so an alleged breach can have consequences beyond the new charge itself.

Do not ignore a missed reporting date, an alleged contact breach or a police call about probation. Keep messages, receipts, attendance records and other proof of compliance, and promptly obtain advice from a probation violation lawyer. For a basic explanation of conditions, see what is probation.

Is a suspended sentence the same as jail or a fine with probation?

No. A suspended sentence is not imprisonment: it is probation-only sentencing under section 731(1)(a). It is also different from a fine with probation or a jail sentence with probation.

Sentence type	Plain-English meaning
Suspended sentence	The court records a conviction, suspends passing sentence and places the person on probation.
Fine or jail with probation	Under section 731(1)(b), the court may impose a fine or imprisonment of two years or less and add probation.
Conditional sentence	This is a sentence of imprisonment served in the community under strict conditions when the Criminal Code requirements are met. It is not the same as a suspended sentence.
Conditional discharge	This is not a conviction, but it includes probation and is available only where a discharge is in the accused’s best interests and not contrary to the public interest.

A person who receives a suspended sentence should take it seriously. A breach allegation or new conviction can put the original offence back before the court, while successful completion of probation does not turn the conviction into an acquittal.

What should you do before an Ontario sentencing hearing?

Prepare early, understand the Crown position without treating it as binding, and make sure the judge receives reliable information about the offence and your circumstances. Sentencing preparation can affect what evidence is available for the court to consider.

• Review the disclosure, guilty plea consequences and sentencing position with counsel.
• Collect letters, treatment records, proof of employment and restitution documents early.
• Discuss whether a proposed probation condition is workable before it is imposed.
• Do not contact a complainant or witness if a release order, probation order or other direction prohibits it.
• Read the final order carefully, ask questions in court if needed and follow it exactly.

At the end of probation, the order expires if it has been completed, but the conviction remains on the person’s record unless and until record-suspension rules permit and support an application. For more on that issue, see does a suspended sentence mean a criminal record.

If you are deciding whether to plead guilty or are waiting for sentencing, a criminal lawyer Toronto can explain the sentencing range, the evidence that may matter and the practical effect of proposed probation terms.

Speak with a Toronto criminal defence lawyer

Advice before a guilty plea or sentencing hearing can help you understand whether a suspended sentence is legally available, what evidence to prepare and what probation conditions could mean in daily life.

Call 647-351-HELP (4357) or book a free consultation to discuss your case with Jeffrey I. Reisman.