Some years ago the Criminal Code was amended to provide for conditional sentences.  These are sentences which allow a person who has been convicted of an offence to serve what would otherwise be a jail sentence, in the community.  So for example if the Court would normally have intended to sentence a person to twelve months incarceration, rather than sending them to jail they could grant them a twelve month conditional sentence.  The terms of the conditional sentence generally require the individual to remain in their residence, other than for work or school, for at least a portion of the sentence (often equivalent to the initial parole ineligibility period) and then a curfew thereafter.  Restrictions such as non-consumption of alcohol, attending treatment, etc. also may be included.

A conditional sentence presents great benefits for all involved. For the accused it will mean that they do not have to go to jail and that they will be able to maintain their employment or continue attending school.  For those dependent upon the accused it will mean that that financial support will still be there.  Society will avoid the cost of incarcerating an individual and the accused will not be exposed to other criminal elements which might encourage him or her to continue down the path of crime resulting in more offences and additional incarceration.  Conditional sentences are only given out in circumstances where the Court is reasonably convinced that the accused will not be reoffending. If an individual breaches their conditional sentence, they will generally be arrested and have to serve the balance of their sentence in jail.

Parliament has gradually eroded the availability of conditional sentences.  Both the Conservative government and the Liberal government thereafter have added to the list of offences for which conditional sentences aren’t available.  This includes crimes of violence, sexual assault and theft over $5,000 to list only a few.

The concern is that while many of the prohibited offences for practical purposes would not result in a conditional sentence, there are circumstances where a conditional sentence would be appropriate.  There was no need to remove the discretion of the Court to impose a conditional sentence.   Similar to mandatory minimum sentences, tying the hands of a sentencing judge is of no practical benefit and can result in significant injustices.  

Recently the Ontario Court of Appeal in the case of R. v. Sharma 2020 ONCA 478 examined the constitutionality of the prohibition against conditional sentences.  Sharma challenged the prohibition against prohibiting conditional sentences for offences that were either prosecuted by way of indictment for which a maximum length of prison time was 14 years or more or involved trafficking or production of drugs.

In the case of Ms. Sharma there were a number of reasons why a conditional sentence would be appropriate.  This included a large number of Gladue factors which were applicable to Ms. Sharma.  The majority of the Ontario Court of Appeal declared that the prohibition of conditional sentences in the two categories mentioned breached both section 7 and 15 of the Charter of Rights and Freedoms and the prohibition as it related to those two categories were therefore declared to be of no force and effect.  Ms. Sharma’s sentence of 17 months imprisonment was set aside and a conditional sentence of 24 months less a day was imposed.

The case will undoubtedly make its way to the Supreme Court of Canada.  The reasoning of the majority however was very compelling.  The majority rejected the Crown’s argument that the prohibition provisions only minimally impaired Ms. Sharma’s rights because they “wanted to remove one sentencing option of many.”  The Court noted that they removed the only sentencing alternative to imprisonment that could have been available for this crime and this offender and this was much like a game of musical chairs where all the chairs are removed and “there is no place left to sit down” (para. 178).   The court also ruled that the removal of the prohibition did not apply only to Aboriginal offenders (para. 179).

While this decision now eliminates the prohibition against conditional sentences where it is prosecuted by way of indictment for which the maximum term of imprisonment is 14 years or more or where the offence involves drug trafficking, the reasoning is applicable to many of the other prohibited categories of offences.  I expect we will see further challenges to the remaining restrictions in the future.

Aaron A. Fox, Q.C.
McDougall Gauley LLP Defence Group

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