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Criminal - Sentencing - Restraint. R v. K.L.
In R v. K.L. (Ont CA, 2026) the Ontario Court of Appeal allowed a sentencing appeal on the issue of 'restraint', here with a young indigenous defendant:[51] The principle of restraint serves to minimize sentences imposed on youthful, first-time offenders. The principle requires a sentencing judge to explore whether dispositions aside from incarceration are appropriate for the first-time offender. Where a custodial sentence is required, the principle requires that the sentence be as short as possible and tailored to the individual circumstances of the accused, with an eye to individual deterrence and rehabilitation over general deterrence and denunciation: R. v. Desir, 2021 ONCA 486, at para. 41, citing R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 32 and R. v. Priest (1996), 1996 CanLII 1381 (ON CA), 110 C.C.C. (3d) 289 Ont. C.A., at pp. 294, 296.
[52] This court has repeatedly held that, in sentencing youthful first-time offenders to incarceration, a sentencing judge must justify why a non-custodial or less severe option is insufficient. Where only a period of incarceration will suffice, the length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Instead, the trial judge must consider the shortest possible sentence required to achieve the relevant objectives: R. v. Al-Akhali, 2025 ONCA 229, 447 C.C.C. (3d) 81, at para. 72, R. v. S.K., 2021 ONCA 619, at para. 13, and R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417 (C.A.), at para. 36.
[53] In R. v. Habib, 2024 ONCA 830, 99 C.R. (7th) 110, writing for this court, Tulloch C.J.O. wrote that, even when dealing with serious offences requiring a sentence that emphasizes denunciation and deterrence, it is nevertheless an error in principle to lose sight of the principle of restraint in dealing with a youthful first-time offender: at paras. 38-39.
[54] The principle of restraint extends to first-time offenders who committed their offences near in age to the appellant here: see R. v. Celenk, 2026 ONCA 60, at para. 18; R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, at para. 39.[2]
[55] The principle of restraint is not only set out in our jurisprudence but is also reflected in ss. 718.2(d) and (e) of the Criminal Code, R.S.C. 1985, c. C-46. . R. v. Hoang
In R. v. Hoang (Ont CA, 2024) the Ontario Court of Appeal considered 'restraint' as a sentencing factor, here in a first-time offence:[78] In light of those circumstances, I agree with the appellant that the trial judge erred in failing to apply the principle of restraint. Specifically, it is well-recognized that where an offender has never served a period of incarceration, the shortest sentence possible ought to be imposed: R. v. Borde (2003), 2003 CanLII 4187 (ON CA), 63 O.R. (3d) 417, at para. 36; R. v. Disher, 2020 ONCA 710, 153 O.R. (3d) 88, at para. 59; R. v. Desir, 2021 ONCA 486, at para. 31; R. v. Simpson, 2021 ONSC 6032; R. v. Thomas, 2014 ONSC 6946; R. v. Faroughi, 2024 ONCA 178, at paras. 69-71. Further, while the objectives of denunciation and deterrence must be given significant weight, they should rarely, if ever, be the sole determinants of the length of a first penitentiary sentence. As Rosenberg J.A. stated in Borde, at para. 36:The length of a first penitentiary sentence for a youthful offender should rarely be determined solely by the objectives of denunciation and general deterrence. Where, as here, the offender has not previously been to penitentiary or served a long adult sentence, the courts ought to proceed on the basis that the shortest possible sentence will achieve the relevant objectives. [79] See also Disher, at para. 59; and Desir, at para. 31.
[80] While this principle has been emphasized in the context of youthful offenders, it is not limited to that context: see e.g., Simpson, at para. 189, where this principle was applied in the context of a “relatively young, middle-aged” offender.
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