Despite the decline, the study found that fines were the most frequently ordered monetary penalty for guilty offenders, followed by victim surcharge orders (16 per cent) and restitution orders at four per cent.
The significant decline in criminal sentences involving fines is partly attributable to the impact of the COVID-19 pandemic and the financial difficulties it caused for many Canadians, noted Toronto criminal and constitutional lawyer Amanda Ross, a partner with Goldbloom Ross Cunningham LLP and chair of the Ontario Bar Association’s Criminal Justice Section.
“A fine as a sentence is only worth as much as the convicted individual’s realistic ability to pay,” she said in an email to Law360 Canada. “If an individual is functionally destitute with no realistic hope of future payment, the court might decide that a fine is an inappropriate sentence and that an alternative form of sentence is more impactful.”
She noted that the downward trend in fines also coincides with an upward pattern in the severity of sentencing over that period.
“Judges may no longer view fines as an appropriate alternative to jail in such cases,” she observed, “and so impose jail time instead to better align with legal principles of sentencing and public sentiment.”
Statistics Canada found there was little change in the use of restitution orders over the 2011 to 2023 period, despite the implementation in July 2015 of the Canadian Victims Bill of Rights (CVBR) by the Conservative government of former prime minister Stephen Harper. The CVBR grants specific rights to victims, including the right to have the court consider issuing a restitution order against the offender.
In the four years following its introduction, the proportion of cases for which guilty offenders were ordered to pay restitution remained steady at only five per cent, noted the report. That proportion fell to four per cent of guilty cases completed during the period from April1, 2019 to March 31, 2023.
By a wide margin, restitution orders in adult criminal court cases were most common in Prince Edward Island, which reported that offenders were ordered to pay restitution in 21 per cent of guilty cases throughout the pre- and post-CVBR periods (April 2011 to March 2015 and April 2015 to March 2019) and 18 per cent in the extended post-CVBR period (April 2019 to March 2023).
Restitution orders rarely occur in combination with other sentences, noted the StatsCan report. Six of the 11 provinces and territories included in the study reported restitution orders as a condition of probation or as part of a conditional sentence.
Over the entire period, restitution was ordered in only two per cent or less of guilty cases for most crime categories, but offenders were sentenced to pay restitution in 16 per cent of cases where a property crime was the most serious offence.
The use of restitution was highest in guilty cases involving fraud, at 24 per cent, compared with 17 per cent of those with at least one charge of mischief.
But based on adult correctional services data, StatsCan found that most restitution orders imposed on adults supervised by correctional services are under $500. But orders with restitution accounted for only three per cent of all probation and conditional sentence orders for adults serving community sentences from April 2015 to March 2019. That dropped to two per cent from April 2019 to March 2023.
The StatsCan report found that the use of victim surcharges in sentencing dropped significantly following the successful 2018 constitutional challenge in R. v. Boudreault to 2013’s Bill C-37, which removed the judicial discretion to waive the surcharge. Bill C-75, which was enacted in June 2019, reinstated judicial discretion to exempt offenders from the surcharge under certain conditions.
After judicial discretion regarding victim surcharges was restored, the proportion of guilty adult criminal court cases with a victim surcharge order imposed as part of the sentence decreased significantly, from 85 per cent during the period from April 2015 to March 2019, to 16 per cent during the period from April 2020 to March 2023.
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