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Criminal - Sentencing - Conditional Sentence. R. v. C.D.V.
In R. v. C.D.V. (Ont CA, 2024) the Ontario Court of Appeal considered factors bearing on a conditional sentence:[7] We would not give effect to this submission. When contemplating imposing a conditional sentence, a sentencing judge must ultimately determine whether the imposition of a conditional sentence would be consistent with "the fundamental purpose and principles of sentencing": see s. 718 of the Criminal Code, R.S.C. 1985, c. C-46. Section 718 speaks to the fundamental purpose of sentencing as contributing "to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions". The section goes on to identify that one of the objectives is to “denounce unlawful conduct” and to “deter the offender and other persons from committing offences”. It is clear from the sentencing judge’s reasons that his focus was not on public safety but rather on denouncing the appellant’s serious crime. Indeed, the sentencing judge plainly stated that in his view a conditional sentence would not meet the principle of denunciation. It was not an error for him to conclude that this objective should feature prominently in this case. The offences were serious and there was evidence that the offences had a devastating impact on the complainant. The sentencing judge was in the best position to determine whether a conditional sentence for these offences would be consistent with the principles of sentencing: Lacasse, at para. 48. . R. v. Menezes
In R. v. Menezes (Ont CA, 2023) the Court of Appeal extensively considers 'conditional sentencing':[41] Conditional sentence orders are governed by a self-contained statutory scheme: Criminal Code, ss. 742 - 742.7. Those provisions govern all aspects of CSOs, from the circumstances in which one can be imposed to what happens when the offender is imprisoned on a new offence. .... . R. v. Johnston
In R. v. Johnston (Ont CA, 2023) the Court of Appeal considers factors on imposing a conditional sentence:[6] When considering the imposition of a conditional sentence, a court must first decide that the imposition of a sentence of imprisonment of less than two years is fit. If such a sentence is not fit, then a conditional sentence cannot be imposed: R. v. Fice, 2005 SCC 32, [2005] 1 S.C.R. 742, R. v. Basque, 2023 SCC 18. Thus, once the sentencing judge had determined that a three-year sentence was fit, a conditional sentence was not available. The conclusion that a penitentiary term of imprisonment was required is reinforced by the fact that both counsel had suggested penitentiary terms of imprisonment in their submissions.
[7] The sentencing judge nevertheless sought to impose a conditional sentence by deducting 12 months and 10 days as credits for pre-trial custody and strict bail conditions, thereby leaving less than two years for the respondent to serve. However, this is not an available route to imposing a conditional sentence because it ignores the point made expressly in Fice, at para. 4: “A conditional sentence cannot become available to an offender who otherwise deserves a penitentiary term solely because of the time the offender spends in pre-sentence custody.” . R. v. Sureskumar
In R. v. Sureskumar (Ont CA, 2023) the Court of Appeal sets out consideration that a trial judge should give to the possibility of a conditional sentence:[43] The appellant submits that the trial judge erred in not imposing a conditional sentence. He relies on this court’s decision in R. v. Ali, 2022 ONCA 736, 164 O.R. (3d) 81 and argues that the trial judge made the same errors as the trial judge in Ali, namely by automatically excluding a conditional sentence because of the nature of the conviction and failing to consider the suitability of a conditional sentence having regard to all relevant sentencing objectives. According to the appellant, a conditional sentence was appropriate based on his status as a youthful first-time offender and the fact that no loss was suffered. This submission is unpersuasive.
[44] This case is distinguishable from the unique factual situation in Ali. In that case, the trial judge erred because she automatically excluded a conditional sentence from consideration because the offence involved significant violence. This court found, at para. 38, that this was an error in principle:It was an error in principle for the trial judge to rule out a conditional sentence based on the level of violence in this case without considering the extent to which a conditional sentence could provide deterrence and denunciation, especially if punitive conditions were imposed, and without weighing all of the relevant sentencing objectives that were applicable in the factual circumstances. [45] In contrast, in the case at bar, the trial judge stated that she “must give serious consideration to the possibility of a Conditional Sentence Order.” She found that a conditional sentence was clearly available. With respect to rehabilitation, the trial judge commented that a sentence in the community could assist in the appellant’s rehabilitation, but she then stated, “I am not convinced that Mr. Sureskumar can be said to be an excellent candidate for rehabilitation given that he denies any culpability in the offences.” These findings distinguish this case from Ali, where the trial judge refused to consider a conditional sentence for an offender who had excellent rehabilitative prospects.
[46] The trial judge stated that she was mindful of the principle of restraint in sentencing a relatively youthful first offender. She then turned to the issue of whether a conditional sentence could give sufficient weight to the principles of general deterrence and denunciation “once all the circumstances of the offences and the offender are taken into account.” The trial judge noted, citing R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, that conditional sentences are available even in cases where deterrence and denunciation are the paramount sentencing objectives. After instructing herself in this regard, she concluded that the many aggravating circumstances and very few mitigating circumstances led her to conclude that a traditional jail sentence was appropriate. She sentenced the appellant to 12 months’ incarceration and noted that, but for the pandemic and the appellant’s relative youthfulness, she would have sentenced him to 18 months.
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