The Importance of the Principle of Restraint in Sentencing

Written on behalf of Barrison Law
man in jail

According to the Criminal Code (the “Code”), the principle of restraint is to protect society, contribute to respect for the law, and maintain a just and safe society. There are also objectives and principles related to the interests of those convicted. 

This article reviews the principle of restraint, which provides that the shortest possible prison sentence should be used for a first penitentiary sentence for a youthful offender. We also look at a recent case of the Court of Appeal for Ontario in which the offender successfully argued that his sentence was too harsh in light of this principle.


The objectives of sentencing are set out in the Criminal Code

According to the Code, the fundamental purpose of sentencing is described as:

“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.”

A sanction imposed by the judge is intended to have one or more of the objectives listed in the Code, such as denouncing the conduct, deterring the offender and others from committing offences, separating offenders from society where needed, and assisting in rehabilitating offenders.

Certain offences require sentencing judges to prioritize particular objectives including denunciation and deterrence. However, some offences have mandatory minimum sentences.


The Code also contains sentencing principles that must be taken into account

The Code requires the courts to consider a range of principles when deciding on an appropriate sentence. The “fundamental principle” is that the sentence needs to be proportionate to the offence’s gravity and the offender’s degree of responsibility.

There is an assortment of other principles set out in the Code which need to be taken into account as well, with some that seem to support a harsher sentence than others, including:

  • the existence of aggravating or mitigating circumstances;
  • the need to impose similar sentences for similar offenders that commit similar offences in similar circumstances;
  • the use of a less restrictive sanction if appropriate, so as to avoid depriving the offender of liberty; and 
  • the use of a sanction that is not imprisonment if reasonable in the circumstances and consistent with the harm caused.


The principle of restraint may support a more lenient sentence

The courts have developed a principle of restraint to be considered as well. This principle applies to youthful, first-time offenders. The principle of restraint requires the sentencing judge to consider all sanctions other than a term of imprisonment. Where imprisonment is required and the young offender has not previously been imprisoned, the courts have said that the judge “ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives.”

The principle of restraint also requires the judge to consider the offender’s rehabilitation when deciding on the length of imprisonment. However, it is important to note that this is not determinative, and the court will also consider other factors, including the nature of the offence.


Offender sentenced to seven years in prison for drug and firearm offences

In the recent decision of R. v Francis, the accused was convicted of possessing a loaded firearm and drugs for the purpose of trafficking. He was arrested at a vehicle stop after police searched his car due to the existence of an outstanding warrant. They found drugs and the gun in his car and more drugs following a strip search.

The judge noted that the offender had no prior criminal record and was only 23 years old when he was arrested and that his prospects for rehabilitation were positive. However, due to the serious charges and the need for denunciation and deterrence, the judge imposed a sentence of seven years imprisonment. This ended up being 35 months after pre-sentence custody was deducted.


Court of Appeal decided that the trial judge did not consider the principle of restraint

The accused appealed the conviction and sentence. In relation to the sentence, he argued before the Court of Appeal that the judge did not apply the principle of restraint and that a five-year sentence would be more appropriate.

The Court of Appeal agreed with the offender that the trial judge did not consider the principle of restraint. Despite making a passing reference to the offender’s age and lack of a criminal record, the judge did not engage with these factors.


Sentence reduced by two years in light of mitigating factors

The Court of Appeal performed its own sentencing analysis. It noted the need to deter and denounce the serious drug trafficking and firearm possession offences, but also noted that several mitigating factors supported a lighter sentence.

The Court noted that:

  • the offender was raised in a violent neighbourhood, losing friends to street violence;
  • the trial judge characterized his rehabilitation prospects as very positive as he had proactively taken steps to prepare for release and had a strong network of friends and family that supported him; and 
  • he was a young person without a prior criminal record.

As a result of these mitigating factors, the Court imposed a shorter, five-year term of imprisonment. 


Contact the Criminal Defence Lawyers at Barrison Law in Oshawa for Representation for Young People

The criminal defence lawyers at Barrison Law have extensive experience representing young clients as well as juveniles facing Youth Court charges. We work with our clients in the Durham and Central East Regions of Ontario and their families to protect young offenders’ rights, so they can turn their lives around.

We accept cases on private retainer and Legal Aid. We offer a 24-hour phone service because we know the importance of speaking to a lawyer straight away. To arrange a free initial consultation on your criminal law matter, call our office at 905-404-1947 or reach out to us online.