Restitution is a sentencing option that focuses directly on compensating a victim for certain financial losses caused by an offence. This guide explains, in general terms, what a restitution order under section 738 of the Criminal Code generally covers, how it can be enforced if unpaid, and how it differs from a fine. It is general information only and does not replace legal advice about a specific case. For the broader sentencing framework, see our overview of criminal sentencing in Ontario.
What Is a Restitution Order?
A restitution order, made under section 738 of the Criminal Code, requires an offender to pay an amount of money directly to a victim, or in some circumstances to a third party who has suffered a loss connected to the offence, to compensate for specific, readily ascertainable financial losses. Restitution is generally considered at the sentencing hearing, alongside the other sentencing options discussed in our guide to sentencing hearings.
Restitution is meant to address concrete financial harm, such as the cost of damaged or stolen property, rather than to compensate for every kind of harm a victim may have experienced. Its scope is narrower than a full civil claim for damages, which is discussed further below.
What Losses Restitution Can Cover
Restitution can generally cover losses such as the replacement value of property that was damaged, lost, or destroyed, and, in certain circumstances, expenses like reasonable moving costs where a victim needed to relocate for their safety following certain offences. Because the specific categories of loss that can be included depend on the applicable provisions and the facts of a case, this page does not attempt to list every scenario in which restitution might apply. A lawyer or a victim services worker can advise on whether a specific loss may be eligible.
A key requirement is that the loss generally needs to be readily ascertainable, meaning it can be calculated with reasonable precision, often supported by receipts, estimates, or other documentation. Losses that are more difficult to quantify with precision, such as ongoing emotional harm, are generally not the kind of loss a restitution order is designed to address, even though they may be significant and can be reflected elsewhere in the sentencing process, such as through a victim impact statement.
How a Restitution Order Is Requested
A request for restitution is generally raised with the Crown, often supported by documentation of the loss, so that it can be presented to the court at the sentencing hearing. Victims are generally encouraged to keep records of relevant expenses and losses as early as possible after an offence, in case restitution becomes a realistic option later in the case. Our broader guide for victims and witnesses discusses support available throughout a case, including at this stage.
Restitution Combined With Other Sentences
Restitution is not, on its own, a complete sentence for most offences; it is generally ordered alongside another sentence, such as probation, a fine, a conditional sentence, or custody, rather than in isolation. Whether restitution is sought, and in what amount, depends on the facts of the case and the losses that can be established.
Enforcing an Unpaid Restitution Order
If an offender does not pay a restitution order as required, the order can generally be filed with the civil court and enforced as though it were a civil judgment. This means the victim, as the person owed money under the order, can use the enforcement tools generally available to a civil judgment creditor, such as garnishment or other collection processes, to pursue the amount owed.
This civil enforcement route exists because restitution is fundamentally about compensating the victim rather than punishing the offender through the criminal justice system's own enforcement mechanisms. Practically speaking, this also means that collecting on an unpaid restitution order can require additional effort and, in some cases, further legal steps on the victim's part, separate from the criminal case itself. A lawyer, including one focusing on civil enforcement, can advise a victim on the realistic options for collecting an unpaid amount.
An unpaid restitution order does not collect itself. Enforcing it as a civil judgment generally requires the victim to take further steps, which is worth understanding before relying on restitution as the sole way to recover a loss.
Restitution vs. a Fine
Restitution and a fine are easy to confuse because both are monetary and both can be part of a criminal sentence, but they serve different purposes and the money goes to different places. A fine is a penalty paid to the court or the relevant provincial authority as a consequence of the offence. Restitution is compensation paid directly to the victim for a specific, quantifiable loss connected to the offence. Our page on fines explains the fine side of this distinction in more detail.
Because they serve different purposes, a court can order both a fine and restitution in the same case, subject to the applicable law and the offender's ability to pay both amounts. Ability to pay is a relevant consideration for both types of order, though it is applied somewhat differently given their different purposes.
Restitution vs. a Separate Civil Lawsuit
A restitution order made in a criminal case is generally narrower in scope than a separate civil lawsuit for damages. A civil claim can potentially address a broader range of harm, including harms that are more difficult to quantify precisely, and involves its own separate process, timelines, and evidentiary requirements. A victim is not necessarily prevented from pursuing a civil claim in addition to, or instead of, requesting restitution in the criminal case, though how these two processes interact depends on the specific circumstances and is a matter for a lawyer, ideally one with civil litigation experience, to advise on.
Practical Limits of a Restitution Order
Even where a restitution order is made, actually receiving payment depends on the offender's financial circumstances and willingness to pay, and, where enforcement becomes necessary, on the practical realities of collecting a civil judgment. A restitution order being made by a court is not a guarantee that the full amount will ultimately be recovered. Victims considering whether to pursue restitution may find it helpful to discuss these practical realities with the Crown, a victim services worker, or a lawyer before deciding how to proceed.
Information for Victims Considering Restitution
Victims interested in restitution are generally encouraged to gather documentation of their losses, such as receipts, repair estimates, or records of related expenses, as early as possible, and to raise the issue with the Crown well before the sentencing hearing so it can be properly presented to the court. Our page on sentencing hearings explains generally how restitution and other sentencing outcomes are addressed at that stage of a case, and our broader guide for victims and witnesses covers other forms of support available throughout a case.
Frequently Asked Questions
What is the difference between a fine and restitution?
A fine is paid to the court or the relevant provincial authority as a penalty. Restitution is paid directly to a victim to compensate for a specific, quantifiable financial loss connected to the offence.
What happens if the offender doesn't pay a restitution order?
The order can generally be filed with the civil court and enforced as a civil judgment, using tools such as garnishment. This often requires the victim to take further steps beyond the criminal case itself.
Can I get restitution for emotional harm?
Generally, restitution is meant for readily ascertainable financial losses, such as the cost of damaged or stolen property, rather than harder-to-quantify harms like emotional distress. A victim impact statement is a separate way to describe broader impacts to the court.
Do I need a lawyer to request restitution?
A request for restitution is generally raised through the Crown as part of the criminal case, but a lawyer, or a victim services worker, can help document losses and understand the process, particularly if enforcement later becomes necessary.
Can restitution and a fine be ordered in the same case?
Yes, they can both be ordered where appropriate, since they serve different purposes and are paid to different recipients, subject to the offender's overall ability to pay.
Is restitution the same as suing someone in civil court?
No. A restitution order is narrower and arises within the criminal case itself, while a civil lawsuit is a separate process that can potentially address a broader range of harm. A lawyer can explain how these options relate in a specific situation.