Before sentencing in Ontario: what are a pre-sentence report and a victim impact statement?

After a guilty plea or a finding of guilt, the judge can order a pre-sentence report: a probation officer's written report about you that helps the judge choose a sentence or decide on a discharge. A victim may also file a victim impact statement describing the harm, which the judge must consider. Before deciding, the judge must ask whether you have anything to say.

Sentencing is its own stage of a criminal case in Ontario, and what happens between the finding of guilt and the sentence can matter a great deal. The weeks while a report is prepared are often the main chance to put your life, your plans and your circumstances in front of the judge.

How does sentencing work, step by step?

The Ontario Court of Justice describes the same basic path for every adult case. Sentencing takes place in the court that heard the plea or trial. In Toronto, many of those cases are at the Ontario Court of Justice described in our guide to the courthouse at 10 Armoury Street.

Your release conditions do not end with the finding of guilt. For most offences, a release order stays in force until the sentence is imposed (s. 523(1)(b)), so every condition, including any no-contact condition, still applies while the report is prepared.

What is a pre-sentence report?

Section 721 of the Criminal Code requires a probation officer, when the court asks, to prepare a written report to help the court impose a sentence or decide whether to grant a discharge. Unless the court says otherwise, it must, wherever possible, cover:

• your age, maturity, character, behaviour, attitude and willingness to make amends;
• your history of previous sentences and findings of guilt, including youth records where the law allows; and
• any history of alternative measures or restorative justice, and how you responded.

The court can also ask for other matters to be included after hearing from both sides (s. 721(4)). Once filed, a copy goes to you or your lawyer and to the prosecutor (s. 721(5)).

How is it prepared, and how long does it take?

According to the Ontario Court of Justice, the probation officer interviews you, people who know you, and any victims. The report outlines your background and your attitude toward the offence, and may include sentencing options and recommendations for specific rehabilitative programs. The court says these reports usually take about six weeks, and sentencing may be delayed during that time.

The interview is not a formality. What you say about the offence, the people affected and your plans shapes the report's account of your attitude and willingness to make amends, which the Code lists first among its contents. Prepare for it with your lawyer, be honest, and do not argue the case again with the probation officer.

If no report is ordered, the court suggests you may wish to give the judge information about your work, family and personal circumstances yourself. Your lawyer will usually gather that material: letters of support, proof of work or school, and records of counselling or treatment.

What is a victim impact statement?

It is a written statement, in Form 34.2, describing the physical or emotional harm, property damage or economic loss the victim suffered and the impact of the offence. The court must consider any statement that has been filed when it decides the sentence or whether to grant a discharge (s. 722(1)). Before sentencing, the judge must ask the prosecutor whether reasonable steps were taken to give the victim the chance to prepare one (s. 722(2)), and can adjourn so a statement can be prepared (s. 722(3)).

A victim can read the statement aloud, with a support person or animal, from outside the courtroom or behind a screen, or in another way the court allows (s. 722(5)). If the statement is presented outside the courtroom, the judge and the offender must be able to watch by video, and the offender must be able to speak with counsel (s. 722(7)). The judge takes into account only the parts relevant to sentencing and disregards the rest (s. 722(8)).

In intimate partner cases, Ontario's Crown policy requires prosecutors to take reasonable steps to give the victim this opportunity as soon as feasible after a finding of guilt. Our page on domestic violence charges in Ontario explains how those cases are prosecuted. A community can also file a community impact statement, in Form 34.3, which the court must consider in the same way (s. 722.2).

What happens at the sentencing hearing?

Both you and the Crown can make submissions on any facts relevant to the sentence, and the court must hear relevant evidence from either side (s. 723(1) and (2)). If you have a criminal record, the Crown may give it to the judge. The court must consider any relevant information placed before it (s. 726.1).

Before determining the sentence, the judge must ask whether you have anything to say (s. 726). If English is not your first language, you have the right to an interpreter in the proceedings (Charter s. 14), and Ontario provides interpretation in any language required in criminal matters. Our guide for Persian-speaking people charged in the GTA explains how to ask for one.

The judge applies the purposes of sentencing in section 718 and the principle that a sentence must be proportionate to the gravity of the offence and your degree of responsibility (s. 718.1). For Indigenous offenders, the judge must consider their circumstances, known as the Gladue principles. The sentence can be a discharge, a fine, probation, jail, or a combination, and in some cases a jail term served in the community, explained in our page on conditional sentences in Ontario. The judge may also make other orders, such as a DNA order, a firearms prohibition or a driving prohibition.

What if something in the report is wrong?

Raise it before the judge relies on it. Where a fact relevant to sentence is disputed, the party relying on it, including a fact in a pre-sentence report, has to prove it, and either side can cross-examine the other's witnesses (s. 724(3)(b) and (c)). The judge must be satisfied of a disputed fact on a balance of probabilities, but the Crown must prove any aggravating fact or previous conviction beyond a reasonable doubt (s. 724(3)(d) and (e)).

What changes the answer?

• Aggravating circumstances. Abuse of an intimate partner or family member, abuse of a person under 18, and abuse of a position of trust are listed aggravating factors (s. 718.2(a)).
• The kind of sentence on the table. A discharge is not available for an offence with a minimum punishment or a maximum of 14 years or life (s. 730(1)); a conditional sentence has its own test in s. 742.1.
• Whether a report is ordered at all. The report is prepared only when the court requires one (s. 721(1)), and Ontario can set by regulation the offences for which one may be ordered (s. 721(2)).
• Immigration status. In R. v. Pham, 2013 SCC 15, the Supreme Court of Canada said a sentencing judge may consider collateral immigration consequences, provided the sentence stays proportionate. Read how a criminal conviction can affect permanent resident status.
• Facts agreed or proved. The judge may accept as proved anything disclosed at trial or at sentencing and any facts both sides agree on (s. 724(1)).

For example: preparing for a report

This is a hypothetical, not a real client or a result. Suppose a 52-year-old permanent resident who is more at ease in Farsi is found guilty of assault after a trial in Toronto. Assault carries a maximum of five years when prosecuted by indictment (s. 266), so the 10-year test in IRPA s. 36(1)(a) is not met, but a jail term of more than six months would be. The judge orders a pre-sentence report and sets sentencing about six weeks out. Our page on assault charges in Ontario explains the different levels of the offence.

His lawyer meets him in Farsi before the probation interview to go through the questions he will be asked and the plan he will describe: counselling already started, steady work, and his daughter's support. When the report arrives, it repeats a claim about an earlier incident that was never proved. The lawyer tells the Crown it is disputed; under s. 724(3), the Crown would have to prove it beyond a reasonable doubt to rely on it as aggravating.

At the hearing, with a court interpreter present, the lawyer files the letters with English translations and puts the immigration consequences before the judge, as Pham allows. When asked under s. 726, he says a few prepared words. The sentence is still the judge's decision.

What mistakes do people make before sentencing?

1. Treating the probation interview as a chat. Your attitude and willingness to make amends are among the first things the report must cover (s. 721(3)(a)).
2. Not reading the report closely. Errors left unchallenged can be relied on. Disputed facts must be raised so they can be proved or set aside (s. 724(3)).
3. Contacting the victim about their statement. A no-contact condition still applies until sentence (s. 523(1)(b)), and breaching a release order is a separate offence (s. 145).
4. Saying nothing about immigration status. Pham shows the consequences should be raised before the sentencing judge, not left for an appeal.
5. Improvising when the judge asks if you have anything to say. Plan a short, sincere statement with your lawyer in advance (s. 726).
6. Letters that miss the point. A support letter should show the writer knows about the offence. Letters written in Farsi should come with an English translation.

What can you do this week?

1. Confirm the sentencing date and whether a pre-sentence report was ordered.
2. Book time with your lawyer to prepare for the probation interview.
3. Collect proof of work or school, family duties, and any counselling or treatment.
4. Ask people who know you to write letters that mention the charge, and arrange translations where needed.
5. Tell your lawyer your immigration status and whether you need an interpreter at the hearing.
6. Re-read your release conditions; they still apply until sentence.

Frequently asked questions

Do I have to take part in the pre-sentence report interview?

The report is ordered by the court and prepared by a probation officer, who interviews you as part of it. It is one of the main ways the judge learns about you, so decide with your lawyer how to approach it.

Will I see the report before the hearing?

Yes. The clerk must give a copy to you or your lawyer, as the court directs, and to the prosecutor as soon as practicable after it is filed (s. 721(5)). Read it with your lawyer and flag anything wrong.

Can the victim's statement mention things I was not convicted of?

The judge considers only the parts of a victim impact statement that are relevant to sentencing and disregards the rest (s. 722(8)). Your lawyer can point out parts that should not be relied on.

Can my family speak at the hearing?

The court must hear relevant evidence presented by either side (s. 723(2)), so family members may be called as witnesses or may write letters. Your lawyer decides with you what will help.

What can the sentence include beyond the main penalty?

The Ontario Court of Justice lists further orders such as a DNA order, a firearms prohibition or a driving prohibition. Our guide to what each criminal case outcome means explains how a discharge, probation and a conviction differ.

What if I disagree with the sentence?

A sentence can be appealed, and the deadline is short. Read how to appeal a criminal conviction or sentence in Ontario as soon as possible.

Getting help

Good sentencing work starts the day a report is ordered, not the day of the hearing. Gambriani Law PC prepares clients and their families for sentencing in Toronto and across the GTA, in English and Farsi, from Suite 1901, 5000 Yonge Street in North York. Call +1 647 970 3370, Monday to Friday, 9:00 a.m. to 5:00 p.m.

This page is general information about Canadian sentencing law, not legal advice about your case.