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Criminal - Sentencing - Conditional Sentence. R. v. Sharma
In R. v. Sharma (SCC, 2025) the Supreme Court of Canada allowed a Crown appeal, this from an Ontario Court of Appeal ruling that allowed an appeal, that from a Superior Court sentencing ruling "that a conditional sentence was unavailable, and dismissed Ms. Sharma’s challenges under ss. 7 and 15(1) of the Canadian Charter of Rights and Freedoms".
Here the court reviews the history of conditional sentencing to date, noting it's role in indigenous sentencing:III. Legislative Framework
[7] Conditional sentences are a type of incarceration provided for under s. 742.1 of the Criminal Code. Such sentences permit offenders who meet statutory criteria to serve their sentences under strict surveillance in their communities, rather than in jail.
[8] Parliament legislated conditional sentences in 1996 in the Act to amend the Criminal Code (sentencing) and other Acts in consequence thereof, S.C. 1995, c. 22. The Act significantly reformed sentencing law (R. v. Gladue, 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, at para. 39), by including an express statement of the purposes and principles of sentencing, by providing for the conditional sentencing regime itself, and by enacting s. 718.2, which sets out considerations for judges to have regard to when determining a fit sentence. In particular, s. 718.2(e) provides that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or to the community should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders”.
[9] Parliament’s principal objectives in enacting this legislation were to reduce sentences of imprisonment and to expand the use of restorative justice principles in sentencing (Gladue, at para. 48; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 15). Section 718.2(e) and the conditional sentencing regime in s. 742.1 were aimed at achieving these goals (Proulx, at paras. 21, 90 and 127; Gladue, at para. 40; R. v. Wells, 2000 SCC 10, [2000] 1 S.C.R. 207, at para. 31).
[10] The Court first considered s. 742.1 in Proulx. Under the legislation at that time, offenders were not eligible for a conditional sentence if (1) their offence was punishable by a minimum term of imprisonment; (2) the court would impose a term of imprisonment of more than two years; (3) imposing a conditional sentence would endanger the safety of the community; or (4) imposing a conditional sentence would be inconsistent with the fundamental purposes and principles of sentencing.
[11] In 2007, Parliament amended s. 742.1 to provide that conditional sentences would also not be available to offenders convicted of a “serious personal injury offence” as defined in s. 752.01, or for offenders convicted of other specific crimes (An Act to amend the Criminal Code (conditional sentence of imprisonment), S.C. 2007, c. 12).
[12] Parliament again amended s. 742.1 in 2012 in the Safe Streets and Communities Act, S.C. 2012, c. 1, s. 34 (“SSCA”), resulting in the current version of s. 742.1. It reads as follows:Imposing of conditional sentence
742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if
(a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
(b) the offence is not an offence punishable by a minimum term of imprisonment;
(c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life;
(d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;
(e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that
(i) resulted in bodily harm,
(ii) involved the import, export, trafficking or production of drugs, or
(iii) involved the use of a weapon; and
(f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions:
(i) section 144 (prison breach),
(ii) section 264 (criminal harassment),
(iii) section 271 (sexual assault),
(iv) section 279 (kidnapping),
(v) section 279.02 (trafficking in persons — material benefit),
(vi) section 281 (abduction of person under fourteen),
(vii) section 333.1 (motor vehicle theft),
(viii) paragraph 334(a) (theft over $5000),
(ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling‑house),
(x) section 349 (being unlawfully in a dwelling‑house), and
(xi) section 435 (arson for fraudulent purpose). [13] While there have been various amendments, the structure of s. 742.1 remains substantially the same as that described in Proulx. In particular, three prerequisites must be met before a conditional sentence can be imposed:(1) the offender was not convicted of one of the offences listed at paras. 742.1(b) through (f) (“exclusionary provisions”);
(2) a court would otherwise impose a sentence of imprisonment of fewer than two years (see Proulx, at paras. 49‑61); and
(3) the safety of the community would not be endangered by the offender serving the sentence in the community (see Proulx, at paras. 62‑76). [14] Where these prerequisites are met, a court must consider whether a conditional sentence is appropriate, having regard to the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 (Proulx, at paras. 77‑78). . R. v. Bardwell [breach of conditions]
In R. v. Bardwell (Ont CA, 2024) the Ontario Court of Appeal considers breach of a conditional sentence [CCC 742.6]:[3] On April 12, 2024, the sentencing judge found that the appellant had in fact breached the terms of her conditional sentence as alleged. She ordered that the appellant’s conditional sentence be terminated and that the appellant serve the balance of her sentence in custody.
[4] On appeal, the appellant argues that the sentencing judge erred in finding that she had breached her conditional sentence. Ms. Bardwell maintains that the evidence in support was insufficient. With the assistance of duty counsel, she further submits that she should have received some credit for the 13-month delay between the date of the breach allegation laid in March 2023 and the disposition of the breach hearing in April 2024. Ms. Bardwell’s position is that credit is due because during this period, the conditional sentence was not running, but she was nonetheless bound by its restrictive conditions. The discretionary power to grant such credit arises out of s. 742.6(16), which provides that,If a court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may, in exceptional cases and in the interests of justice, order that some or all of the period of suspension referred to in subsection (10) is deemed to be time served under the conditional sentence order. [5] Subsection 742.6(17) sets out certain mandatory – though non-exclusive – considerations:In exercising its discretion under subsection (16), a court shall consider
(a) the circumstances and seriousness of the breach;
(b) whether not making the order would cause the offender undue hardship based on the offender’s individual circumstances; and
(c) the period for which the offender was subject to conditions while the running of the conditional sentence order was suspended and whether the offender complied with those conditions during that period. [6] In my view, the appeal must be dismissed.
[7] An order terminating a conditional sentence is subject to the same standard of review as other sentence appeals; the reviewing court owes substantial deference to the sentencing judge. Appellate intervention is nonetheless justified when the reasons below reveal an error in principle that had an impact on sentence: see R. v. Antaya, 2022 ONCA 819, at para. 3.
....
[10] The starting point on sentencing in these circumstances is, as stated by the Supreme Court of Canada, that the presumed consequence of a breach of conditional sentence is its termination, with the remainder of the term to be served in jail. As the court explained in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 39:[W]here an offender breaches a condition without reasonable excuse, there should be a presumption that the offender serve the remainder of his or her sentence in jail. This constant threat of incarceration will help to ensure that the offender complies with the conditions imposed. It also assists in distinguishing the conditional sentence from probation by making the consequences of a breach of condition more severe. [Citations omitted.] [11] Section 742.6(16) nonetheless provides for the possibility of granting credit against the remainder of the sentence. In the absence of any reference to s. 742.6(16) in the sentencing judge’s reasons, I am unable to conclude that the sentencing judge in fact considered whether the 13-month delay made this case an exceptional one for the purpose of that section. It is therefore open to this court to consider the applicability of the provision based on the facts as found by the sentencing judge: R. v. McCool, 2024 ONCA 457, 438 C.C.C. (3d) 553, at para. 28.
[12] Having considered the possible application of s. 742.6(16), I have concluded that the appeal ought to be dismissed. There is no basis in the record to find that there were exceptional circumstances in this case that could justify ordering that some or all of the period during which Ms. Bardwell’s sentence was suspended be deemed to be time served.
[13] Subsection 742.6(16) can only be given effect in “exceptional cases”. As explained by Rosenberg J.A. in the context of interpreting a different criminal law provision that includes these words,[1] by restricting the application of s. 742.6(16) to exceptional cases, Parliament intended that this provision be given effect only in the “clearest of cases” presenting rare and exceptional circumstances: see R. v. R.E.W. (2006), 2006 CanLII 1761 (ON CA), 79 O.R. (3d) 1 (C.A.), at para. 31. The plain wording of s. 742.6(16) further requires that the court be satisfied that granting credit for at least a portion of the period during which the conditional sentence order was suspended is “in the interests of justice”. . 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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