- Sentencing in Canada is governed by section 718 of the Criminal Code, which sets out multiple purposes — denunciation, deterrence, separation where necessary, rehabilitation, reparations, and promoting responsibility.
- The fundamental principle, under section 718.1, is proportionality: a sentence must reflect the gravity of the offence and the offender's degree of responsibility.
- Aggravating factors under section 718.2(a) — such as hate motivation, abuse of a spouse, abuse of a position of trust, or abuse of a child — can push a sentence upward.
- Mitigating factors — a guilty plea, genuine remorse, no prior record, youth, and rehabilitation efforts — can pull a sentence downward.
- Gladue factors under section 718.2(e) require courts to give particular attention to the circumstances of Indigenous offenders — a distinct, constitutionally significant consideration, not a generic mitigating factor.
- The totality and parity principles act as checks on the process — a combined sentence should not be unduly harsh, and similar offenders should receive similar sentences.
The Short Answer
Every Canadian criminal sentence is built around the same statutory framework — the purposes and principles set out in sections 718 through 718.2 of the Criminal Code. Within that framework, aggravating factors push a sentence toward the harsher end of what is appropriate, and mitigating factors pull it toward the more lenient end, all anchored by the requirement that the sentence remain proportionate to the offence and the offender's responsibility for it.
The Purposes of Sentencing Under s.718
Section 718 sets out the fundamental purpose of sentencing: to protect society and contribute to respect for the law through the imposition of just sanctions. It identifies several specific objectives a court can pursue, often in combination, depending on the offence and the offender:
- Denunciation — formally condemning the unlawful conduct
- Deterrence — discouraging the offender, and the public generally, from committing similar offences
- Separation from society — where necessary to protect public safety
- Rehabilitation — assisting the offender's reintegration
- Reparations — providing reparations for harm done to victims or the community
- Promoting a sense of responsibility — in the offender, including acknowledgment of the harm caused
These purposes are not ranked in a fixed order — a court weighs which objectives matter most given the specific offence, the offender's circumstances, and the surrounding facts. A youth record offence might emphasize rehabilitation, while a violent offence involving a vulnerable victim might emphasize denunciation and separation.
Proportionality: The Fundamental Principle
Section 718.1 establishes what courts describe as the fundamental principle of Canadian sentencing: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Every aggravating and mitigating factor discussed below ultimately operates within this constraint — factors don't simply add or subtract points from a fixed number, they inform the court's assessment of just how serious this offence was, and just how responsible this particular offender is for it.
Aggravating Factors
Section 718.2(a) directs courts to increase a sentence to account for aggravating circumstances relating to the offence or the offender. While the list is illustrative rather than closed, it specifically identifies several categories that Parliament considers especially serious:
- Bias, prejudice, or hate motivation — where the offence was motivated by bias, prejudice, or hate based on race, national or ethnic origin, language, colour, religion, sex, age, disability, sexual orientation, gender identity or expression, or similar factors
- Abuse of a spouse or intimate partner — where the offender abused their spouse, common-law partner, or intimate partner in committing the offence
- Abuse of a position of trust or authority — where the offender took advantage of a position of trust or authority in relation to the victim, such as a caregiver, employer, or person in authority
- Abuse of a child — where the offence involved the abuse of a person under the age of eighteen
- Organized crime involvement — where the offence was committed for the benefit of, at the direction of, or in association with a criminal organization
- Terrorism — where the offence constitutes a terrorism offence
Courts routinely treat other circumstances as aggravating too — planning and premeditation, significant harm to the victim, the use of a weapon, or a related prior record — even where they aren't on the specific statutory list. Section 718.2(a) sets a floor, not a ceiling.
Mitigating Factors
On the other side, a range of factors can reduce the sentence a court considers appropriate, by reflecting a lower degree of culpability, a lower risk to public safety going forward, or circumstances that make denunciation and deterrence less necessary to achieve at the harshest possible level:
- A guilty plea and genuine remorse — particularly an early plea, which reflects acceptance of responsibility and spares the system, victims, and witnesses the burden of a trial
- No prior criminal record — especially relevant for a first offence
- Youth — a young offender's age and maturity can factor into the appropriate emphasis on rehabilitation
- Rehabilitation efforts — engagement with counselling, treatment programs, or addiction recovery before sentencing
- Personal circumstances connected to the offence — such as mental health struggles or addiction that are genuinely linked to the underlying conduct
- Positive character and community ties — often demonstrated through character letters and a stable, supportive environment
A first-time offender with no prior record pleads guilty early, expresses genuine remorse, and has already begun a relevant treatment program before sentencing. A court can treat all of these as mitigating, potentially resulting in a materially different outcome than the same offence committed by someone with a related record who contested the charge through trial.
Aggravating vs. Mitigating: Side by Side
| Aggravating Factors (Push Sentence Up) | Mitigating Factors (Pull Sentence Down) |
|---|---|
| Hate, bias, or prejudice motivation | Early guilty plea and genuine remorse |
| Abuse of a spouse or intimate partner | No prior criminal record |
| Abuse of a position of trust or authority | Youth and demonstrated maturity concerns |
| Abuse of a child (under 18) | Engagement in rehabilitation or treatment |
| Organized crime or gang involvement | Personal circumstances genuinely tied to the offence, such as addiction |
| Terrorism-related offence | Positive character evidence and community support |
| Significant planning or premeditation | Cooperation with police or the prosecution |
Gladue Factors and Indigenous Offenders
Section 718.2(e) requires courts to consider all available sanctions other than imprisonment that are reasonable in the circumstances for all offenders, with particular attention to the circumstances of Indigenous offenders. This provision, and the body of case law interpreting it — beginning with the Supreme Court's decision in R v Gladue — recognizes the acute and disproportionate overrepresentation of Indigenous people in the Canadian justice system.
In practice, this requires sentencing judges to consider two connected things: the unique systemic and background factors that may have played a role in bringing the individual before the court — such as the effects of intergenerational trauma, the residential school system, or displacement from community and culture — and the range of sentencing procedures and sanctions that may be appropriate given the offender's Indigenous heritage or connection, which can include restorative and community-based approaches.
Gladue factors are a distinct, constitutionally significant sentencing consideration, not simply one more item on a general mitigating factors list. Courts are required to actively inquire into these circumstances, and a failure to properly consider them can itself be an error affecting the sentence.
Totality and Parity: The Checks on the System
Two further principles operate alongside aggravating and mitigating factors to keep the overall system coherent and fair:
- Totality — reflected in section 718.2(c), where an offender is sentenced for multiple offences and consecutive sentences are imposed, the combined total should not be unduly long or harsh when considered against the offender's overall culpability. A judge can adjust the total downward to respect this principle, even where the individual sentences would otherwise add up to something disproportionate.
- Parity — similar offenders who commit similar offences in similar circumstances should generally receive similar sentences, promoting consistency and public confidence in the system, while still allowing room for the specific facts of each case.
See our dedicated guide on concurrent vs. consecutive sentences in Ontario for how totality applies when someone is sentenced on more than one charge at once.
How It All Comes Together
In a real sentencing hearing, a judge does not simply tally up aggravating factors against mitigating ones like a scoresheet. Instead, the judge starts from an understanding of the range of sentence typically imposed for similar offences in similar circumstances (informed by the parity principle), then adjusts within — or occasionally outside — that range based on the aggravating and mitigating factors specific to this offence and this offender, while always testing the result against the fundamental requirement of proportionality. Where multiple offences are involved, totality is applied as a final check on the combined outcome.
Common Myths
Myth: “A guilty plea automatically means a lighter sentence, no matter what.”
Not automatically. A guilty plea is a genuine mitigating factor, but it is weighed alongside everything else, including any aggravating factors present — it does not override the requirement of a proportionate sentence.
Myth: “Aggravating factors only matter for very serious, violent crimes.”
False. Aggravating factors like abuse of trust or hate motivation can apply across a wide range of offence types, not just the most serious ones.
Myth: “Gladue factors mean an Indigenous offender automatically gets a lighter sentence.”
False. Section 718.2(e) requires courts to give particular, genuine attention to an Indigenous offender's unique circumstances and to consider all reasonable alternatives to imprisonment — it does not guarantee any specific outcome, and public safety and the other purposes of sentencing remain relevant.
Preparing for a sentencing hearing or want to understand what factors apply to your case? Call our Toronto criminal defence lawyers at 416-274-2222 for a free consultation.
Frequently Asked Questions
Aggravating factors are circumstances that make an offence more serious and can justify a harsher sentence, such as hate motivation or abuse of a position of trust. Mitigating factors are circumstances that reduce the offender's culpability or suggest a lower sentence is appropriate, such as a guilty plea, genuine remorse, or having no prior criminal record.
Proportionality. Section 718.1 of the Criminal Code establishes proportionality as the fundamental principle — a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Every other sentencing factor and principle operates within that constraint.
Generally, yes, and courts commonly treat an early guilty plea as a mitigating factor, since it reflects acceptance of responsibility and spares the justice system, victims, and witnesses the burden of a trial. The specific weight given depends on the timing and the surrounding circumstances.
This refers to situations where an offender used a position of trust or authority over the victim to commit the offence — for example, a caregiver, employer, or someone in a position of authority over the victim. Courts treat this as an aggravating factor because the offence involves a betrayal of the specific relationship as well as the underlying criminal conduct.
Gladue factors, arising from section 718.2(e) of the Criminal Code and the Supreme Court's decision in R v Gladue, require sentencing judges to pay particular attention to the unique systemic and background circumstances of Indigenous offenders and to consider all sanctions other than imprisonment that are reasonable in the circumstances. This is a distinct, constitutionally significant sentencing consideration rooted in addressing the overrepresentation of Indigenous people in the justice system, not simply another item on a generic mitigating factors list.
It can be a relevant mitigating consideration, particularly where there is a genuine, demonstrated connection between the mental health condition or addiction and the offence, and where the offender is engaged in treatment or rehabilitation. Courts weigh this alongside the other purposes of sentencing, including public safety.
The totality principle, reflected in section 718.2(c) of the Criminal Code, requires that where consecutive sentences are imposed for multiple offences, the combined total should not be unduly long or harsh, considered against the offender's overall circumstances and moral culpability. It acts as a final check after individual sentences have been calculated.
Parity means similar offenders who commit similar offences in similar circumstances should generally receive similar sentences. It promotes consistency and public confidence in sentencing, though courts still tailor each sentence to its specific facts.
It is a genuine and commonly weighed mitigating factor, but it does not guarantee a specific outcome. Courts weigh it together with the seriousness of the offence, the presence of any aggravating factors, and the other sentencing purposes at play.
Yes, this is common. Courts weigh all relevant aggravating and mitigating factors together, rather than looking at any single factor in isolation, to arrive at a sentence that is proportionate overall.