- A restitution order under Criminal Code section 738 requires an offender to pay the victim directly for readily ascertainable financial losses caused by the offence.
- Restitution is different from a fine — a fine is paid to the court as punishment, while restitution compensates the specific victim for their actual, provable loss.
- Restitution is also different from the victim fine surcharge, a largely separate, more general charge that funds victim services rather than compensating the individual victim.
- Courts generally will not order restitution for complex or disputed damages like pain and suffering — those claims belong in a separate civil lawsuit.
- An unpaid restitution order can be filed with the civil court and enforced like a judgment, and in many cases survives bankruptcy, unlike ordinary debts.
- Under section 737.1, a sentencing court must consider restitution in every case, and must give reasons on the record when a victim sought it but none was ordered.
The Short Answer
A restitution order requires a convicted offender to pay the victim of their offence directly, to compensate for a specific, provable financial loss — think stolen property, property damage, or documented out-of-pocket expenses. It is a distinct sentencing tool from a fine, distinct from the victim fine surcharge, and it exists to make victims financially whole where possible, without forcing them into a separate civil lawsuit for straightforward, easily calculated losses.
What Is a Restitution Order?
Under Criminal Code section 738, a court sentencing (or discharging) an offender can order them to pay restitution to a person affected by the offence. This is available in addition to whatever other sentence is imposed — a restitution order can accompany a fine, probation, a conditional sentence, or a custodial sentence.
Restitution most commonly covers:
- Property damage or loss — the replacement value of stolen or destroyed property, less the value of anything that was recovered or returned.
- Out-of-pocket expenses — costs directly and demonstrably incurred because of the offence.
- Lost income — in some circumstances, quantifiable lost earnings connected to the offence.
- Costs related to bodily or psychological harm in certain circumstances, including harm arising from the arrest or attempted arrest of the offender.
A court's power to make a restitution order is not defeated simply because the offender currently has limited means to pay. The order can still be made, with payment structured as a lump sum or in instalments, depending on the offender's circumstances.
Restitution vs. a Fine
These two are frequently confused, but they serve fundamentally different purposes.
| Factor | Fine | Restitution |
|---|---|---|
| Who receives payment | The court / the state | The identified victim, directly |
| Purpose | Punishment and denunciation | Compensation for an actual financial loss |
| Basis for amount | Set by the court based on the offence and offender's circumstances | Tied to a specific, readily ascertainable loss suffered by the victim |
| Can both be ordered together? | Yes — a fine and a restitution order are not mutually exclusive | |
Restitution vs. the Victim Fine Surcharge
The victim fine surcharge is a separate charge that applies largely automatically alongside many sentences, and the funds it generates go toward funding victim services generally — not to the specific victim of the offence. Restitution, by contrast, is a distinct order tied specifically to an identified victim's own quantifiable loss, and the money goes directly to that victim.
A single case can involve both: an offender might be ordered to pay a victim fine surcharge (which funds the broader victim services system) and a restitution order (which compensates the specific person harmed) and a fine (which punishes the offender) — three separate financial consequences serving three separate purposes.
What Restitution Can and Cannot Cover
The key legal limitation on restitution is that the loss must be “readily ascertainable” — capable of being calculated with reasonable certainty, typically supported by receipts, invoices, appraisals, or similarly concrete documentation.
| Typically Covered | Typically Not Covered by Restitution |
|---|---|
| Cost to replace or repair stolen/damaged property | Pain and suffering |
| Documented, direct out-of-pocket expenses | Loss of enjoyment of life |
| Straightforward, provable lost income | Complex or disputed future losses |
| Reasonable, quantifiable moving/relocation costs in some domestic violence-type contexts | Damages requiring extensive expert evidence to quantify |
A break-and-enter results in a stolen laptop and a broken window. The victim provides a receipt for the laptop's replacement and a contractor's invoice for the window repair. This is exactly the kind of readily ascertainable loss a restitution order is designed to address. By contrast, if the same victim wanted compensation for the ongoing anxiety caused by the break-in, that kind of claim is not something a restitution order is well suited to quantify — it would need to be pursued, if at all, through a civil action.
Keep receipts, invoices, repair estimates, and any other documentation of your losses as early as possible. A well-documented, clearly quantified request for restitution is far more likely to result in an order than a vague estimate.
Why Courts Must Consider It in Every Case
Restitution is not left entirely to chance or to whether a victim happens to raise it. Under section 737.1 of the Criminal Code, the sentencing court has a duty to inquire, as soon as feasible after a finding of guilt, whether reasonable steps have been taken to give victims an opportunity to indicate whether they are seeking restitution.
Where a victim has sought restitution but the court ultimately does not make an order, the court is required to include in the record a statement of its reasons for not doing so. This creates real accountability — restitution cannot simply be overlooked once a victim has put their losses before the court.
How a Restitution Order Is Enforced
A restitution order is not merely a moral obligation — it has real legal teeth. If the offender does not pay as ordered, the order can be filed with the civil court, at which point it is treated as a civil judgment and can be enforced using the standard tools available to any judgment creditor, such as garnishment or seizure of assets, depending on the offender's circumstances.
| Step | What Happens |
|---|---|
| 1 | Restitution order is made as part of sentencing, with a payment deadline or instalment schedule |
| 2 | If unpaid by the deadline, the order can be filed with the civil court |
| 3 | Once filed, it is enforceable as a civil judgment against the offender |
| 4 | Standard civil enforcement remedies become available to collect the debt |
A notable practical advantage of restitution orders is that, in many circumstances, they survive bankruptcy — unlike many ordinary debts, which can be discharged. This reflects the underlying policy that an offender should not be able to simply erase their obligation to compensate a victim for a criminal act by filing for bankruptcy protection.
How Victims Actually Seek Restitution
A victim does not need to hire a lawyer or navigate a separate legal process to seek restitution within the criminal case. In practice:
- The victim provides the Crown with a statement of their losses, ideally supported by receipts, invoices, or other documentation.
- The Crown can request the restitution order as part of the sentencing submissions, or the court itself can raise the issue given its duty to inquire under section 737.1.
- The defence has the opportunity to respond to the amount and basis of the claimed restitution.
- The court decides whether to make the order and on what terms, including whether payment is due immediately or in instalments.
Victims who have more complex or disputed losses — or who want to pursue damages a restitution order is not suited to address, such as pain and suffering — retain the option of a separate civil lawsuit, whether instead of or alongside a restitution order, subject to the general legal principle against double recovery for the same loss.
Common Myths
Myth: “Restitution and the victim fine surcharge are the same thing.”
False. The surcharge funds victim services generally; restitution compensates the specific victim for their own quantifiable loss.
Myth: “I can get compensated for pain and suffering through restitution.”
Generally false. Restitution is limited to readily ascertainable financial losses — pain and suffering is a civil law concept pursued through a lawsuit, not a restitution order.
Myth: “If the offender declares bankruptcy, the restitution order disappears.”
Not necessarily. In many circumstances, restitution orders survive bankruptcy, unlike many ordinary debts.
Myth: “I need my own lawyer to ask for restitution.”
Not required. A victim can provide a statement of losses and documentation to the Crown, who can pursue the order as part of the criminal proceeding.
Whether you are seeking restitution as a victim or responding to a restitution claim as an accused, call our Toronto criminal lawyers at 416-274-2222 for a free consultation.
Frequently Asked Questions
A restitution order is a sentencing order under Criminal Code section 738 requiring the offender to pay the victim directly for a readily ascertainable financial loss caused by the offence — such as property damage, stolen property, or documented out-of-pocket expenses.
A fine is a punishment paid to the court and the state. Restitution is compensation paid directly to the identified victim for their actual, provable financial loss. They serve different purposes and can both be ordered in the same case.
No. The victim fine surcharge is a separate charge, generally tied to the sentence itself, that funds victim services broadly rather than compensating a specific victim. Restitution compensates the identified victim directly for their own losses.
Generally, no. Restitution is limited to readily ascertainable financial losses. Damages like pain and suffering are not considered readily ascertainable in the same way and are typically pursued through a separate civil lawsuit rather than a restitution order.
A restitution order that is not paid can be filed with the civil court and enforced the same way as a civil judgment — including through the usual civil enforcement mechanisms available to any judgment creditor.
In many circumstances, yes, which is a significant advantage over ordinary debts. This makes restitution more durable than many other financial obligations, though the exact treatment can depend on the specifics of the order and the bankruptcy.
Not necessarily. A victim can provide the Crown with a statement of losses and supporting documentation, and the Crown can pursue a restitution order on the victim's behalf as part of the criminal proceeding, without the victim needing to retain separate counsel.
Yes, pursuing both is possible, though courts generally guard against double recovery — meaning the total amount recovered across a restitution order and a civil judgment for the same loss cannot simply be added together without regard to what has already been paid.
Yes. Under section 737.1, a sentencing court must consider whether to make a restitution order in every case, and if a victim sought restitution but the court does not order it, the court must state its reasons for not doing so on the record.
Courts are cautious about ordering restitution for amounts that are not readily ascertainable — if your losses are complex, disputed, or would require significant litigation to quantify, a civil lawsuit is generally the more appropriate route rather than a restitution order.