Restraint Principle

From Criminal Law Notebook
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This page was last substantively updated or reviewed January 2020. (Rev. # 91227)

General Principles

The principle of restraint is found in s. 718.2(d) and (e).[1]

Section 718.2 states, in part:

718.2
...

(d) an offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
(e) all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.

1995, c. 22, s. 6; 1997, c. 23, s. 17; 2000, c. 12, s. 95; 2001, c. 32, s. 44(F), c. 41, s. 20; 2005, c. 32, s. 25; 2012, c. 29, s. 2; 2015, c. 13, s. 24, c. 23, s. 16; 2017, c. 13, s. 4; 2019, c. 25, s. 293.

– CCC (CanLII), (DOJ)

Note up: 718.2

When Retaint is to be Used

Restraint is an important principle that should be "used in an appropriately reasonable but humane manner". It should "invigorat[e] the confidence of the public that sentences imposed are both just and fair."[2]

Function of Principle

The principle operates to permit judges to pose "a just and appropriate punishment, and nothing more."[3]

Parliament codified the principle of restraint in order to limit the use of incarceration.[4]

Problem with Overly Harsh Sentences

An overly harsh or oppressive sentences that "fail to acknowledge the unique circumstances and facts of a case will not be seen as fair or rational."[5]

Least Intrusive Sentence

Restraint not only means that prison should be a sanction of last resort, but also means that the court should "seek the least intrusive sentence and the least quantum which will achieve the overall purpose of being an appropriate and just sanction."[6] This is particularly important for first offenders.[7]

Where other dispositions have been tried and failed, and jail has not previously been imposed, the imposition of a "short, sharp" sentence can be appropriate, particularly where the offence is related to property and not violence.[8]

Objectives of Sentencing

The principle also requires the judge to consider rehabilitation in setting the length of the sentence.[9]

"General deterrence cannot be the sole consideration. Appropriate consideration must be given to the rehabilitation of the offender."[10]

Jump Principle

The "jump principle" acts as a form of restraint as it limits courts from increasing penalties for repeat offenders, particularly where rehabilitation remains a significant sentencing factor.[11]

Mental Health as Factor

Where mental health issues played a central role in the commission of the offence, deterrence and punishment are of less importance.[12]

  1. ↑ R v MacDonald, 1997 CanLII 9710 (SK CA), 113 CCC (3d) 418, per Lane JA, at para 147, concurring with Sherstobitoff JA ("I read s. 718.2(d) and (e) as a clear intention on the part of Parliament to reduce institutional incarceration and to adopt the principle of restraint.")
    R v Gladue, 1999 CanLII 679 (SCC), [1999] 1 SCR 688, per Cory and Iacobucci JJ, at paras 37 to 41
  2. ↑ R v May, 2012 ABCA 213 (CanLII), 102 WCB (2d) 615, per curiam (3:0)
  3. ↑ R v CAM, 1996 CanLII 230 (SCC), [1996] 1 SCR 500, per Lamer CJ, at para 80
  4. ↑ R v Batisse, 2009 ONCA 114 (CanLII), 241 CCC (3d) 491, per Gillese JA (2:1), at para 35
  5. ↑ R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J (5:2), at para 3 ("The credibility of the criminal justice system in the eyes of the public depends on the fitness of sentences imposed on offenders. A sentence that is unfit, whether because it is too harsh or too lenient, could cause the public to question the credibility of the system in light of its objectives.")
    R v Thompson, 2017 NSPC 18 (CanLII), per Derrick J, at para 73
  6. ↑ R v Hamilton, 2004 CanLII 5549 (ON CA), 186 CCC (3d) 129, per Doherty JA, at para 96
    R v Ali, 2022 ONCA 736 (CanLII), per Zarnett JA, at para 40 ("This court has held that the restraint principle requires a sentencing judge to consider all sanctions apart from incarceration, especially for first offenders. It is an error, especially when sentencing a first offender, to focus exclusively on general deterrence and to fail to consider individual deterrence and rehabilitation")
  7. ↑ Ali, ibid., at para 40
  8. ↑ R v Vandale, 1974 CanLII 1610 (ON CA), 21 CCC (2d) 250 (ONCA), per Martin JA citing McKenna J. of the English Court of Appeal in R v Curran (1973), 57 Crim. App. R. 945 ("As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence and imposed as this sentence was for reasons of general deterrence, that is, as a warning to others.")
  9. ↑ Batisse, supra, at para 33
  10. ↑ R v Blanas, 2006 CanLII 2610 (ON CA), 207 OAC 226, per curiam, at para 5
  11. ↑ R v Willier, 2005 BCCA 404 (CanLII), per Smith JA, at para 30
  12. ↑ Batisse, supra, at para 38

First-time Offenders

Where a first-time offender is to be sentenced a judge should consider all possible dispositions other than incarceration. Custody should only be imposed where "the offence is of such gravity that no other sentence is appropriate."[1] It is preferable in most cases that non-violent first time offenders be punished in other ways than incarceration.[2]

For first time offenders, the principle of restraint "requires that the sentencing judge consider all sanctions apart from incarceration" and where necessary ensure the term be as "short as possible and tailored to the circumstances of the accused."[3]

Offences of Violence

Certain violent offences will attract a jail sentence despite being a first offence.[4]

  1. ↑ R v Stein, 1974 CanLII 1615 (ON CA), 15 CCC (2d) 376 (ONCA), per Martin JA, at para 4 ("In our view, before imposing a custodial sentence upon a first offender the sentencing Court should explore the other dispositions which are open to him and only impose a custodial sentence where the circumstances are such, or the offence is of such gravity that no other sentence is appropriate")
    R v Priest, 1996 CanLII 1381 (ON CA), [1996] 30 OR (3d) 538, per Rosenberg JA, at para 20 ("The duty to explore other dispositions for a first offender before imposing a custodial sentence is not an empty formalism which can be avoided merely by invoking the objective of general deterrence. It should be clear from the record of the proceedings, preferably in the trial judge’s reasons, why the circumstances of this particular case require that this first ")
    R v Pierce, 1996 CanLII 1381 (ON CA), [1996] 30 OR (3rd) 538, per curiam (3:0) - courts should consider non-custodial sentences in appropriate cases of first time offenders
  2. ↑ R v Laschalt, 1993 CanLII 14689 (MB CA), 81 CCC (3d) 154, per Sinclair JA, at p. 59 ("The imprisonment of non-violent first offenders is counter-productive. It strains a system already strained by more violence and repeat offenders than it can rehabilitate. It often results in a first offender emerging bitter and more ready to commit further crimes. Better that a non-violent, first offender be punished in another way")
  3. ↑ R v Battise, 2009 ONCA 114 (CanLII), 241 CCC (3d) 491, per Gillese JA, at para 32
    Priest, supra, at p. 545
  4. ↑ R v Perlin, [1977] N.S.J. No 548(*no CanLII links) , per A Macdonald JA, at para 8("In my opinion the over riding consideration in sentencing with respect to crimes of violence must be deterrence and it is for such reason that save for exceptional cases substantial terms of imprisonment must be imposed.")
    R v MacNeil, 2009 NSSC 310 (CanLII), 900 APR 118, per S Macdonald J citing Perlin, supra, at para 31

See Also

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