Community options

Prison isn’t the only possible response to crime. Offenders can be held to account and assume responsibility for their behaviour and, if necessary, be treated outside a jail, while their future is protected by their continued engagement with the labour market and their family.[1] It’s often the most effective option of dealing with non-violent offenders, who are the majority: 77% of completed court cases involved non-violent offences in 2010/2011.[2]

Research shows that victims, too, when asked to select an appropriate sentence for the offender in their case, often (although not always) chose community-based sanctions.[3]

Since 1996, the Criminal Code has contained the principle of restraint in the use of incarceration. It states, “an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.” And indeed there is growing recognition internationally that, for many reasons, responses to crime that stay rooted in a community’s  life are smart policy.

The Code sets out, in ascending order, the following alternative sanctions:

  • alternative measures
  • discharge
  • probation
  • intermittent sentences
  • fines
  • restitution to victims
  • conditional sentences of imprisonment.

Alternative measures, more commonly known as diversion, are measures that the police (pre-charge) and/or prosecutors (post-charge) can take to deal with accused persons outside the formal court system. Alternative measures may be used can be used for individuals without a criminal record who have been involved in minor and non-violent matters as long as they are not inconsistent with the protection of society and are in the interests of society and of the victim. In addition, the accused must accept responsibility for the act that was the basis of the alleged offence. It is usually at this stage that restorative justice processes come into play.

An absolute or conditional discharge can be used by a judge if he or she considers it to be in the best interests of the accused and not contrary to the public interest. An absolute discharge means the accused person will not have a criminal record. A judge who wishes to maintain some control over an accused may place him or her on probation for a time and grant a conditional discharge, which does not become absolute until the successful completion of the probationary period.

Probation, is the most widely used sentence in adult criminal courts in Canada, accounting for about 45% of sentences handed down.[4] It can be a stand-alone order of less than three years or take effect after a sentence of imprisonment or a conditional sentence of less than two years. It contains mandatory and optional conditions and its primary focus is rehabilitation.

Intermittent sentences are those that a judge allows an offender sentenced to 90 days or less to serve intermittently, often on weekends, so he or she can maintain employment or continue an educational program. They used to make up about 15% of provincial/territorial sentences, but since the government increased the mandatory minimum punishment for impaired driving, its use has declined.

Fines are commonly imposed, and failure to pay can result in imprisonment, although most provinces (but not the most populous ones) have fine-option programs that permit defaulters to work off their fine through community service.

Restitution orders can be issued by a Court against an offender for readily ascertainable damage for loss of property or injury. These can be enforced by registration in any civil court in Canada. They can be stand-alone orders or part of a probation or conditional sentence order.

A conditional sentence is a prison sentence of two years or less that a court may allow an offender to serve in the community provided that several criteria are met, the most important of which is that the court is satisfied that it would not endanger the community.
Conditions may be house arrest, community service, abstention from drug and alcohol conditions and mandatory treatment and counselling. It is the only sanction in the Criminal Code where treatment can be ordered without the offender’s consent. In recent years, the list of possible conditional sentences has been reduced, and fewer offences are now eligible for the conditional sentencing option.

David Daubney



[3] Julian Roberts, Kent Roach, « Community-Based Sentencing: The Perspectives of Crime Victims”, Policy Centre for Victims Issues, Department of Justice Canada, 2004.