R. v. Maslehati, 2024 BCCA 207
[105] In both T.H. and Henry, this Court acknowledged the availability of conditional sentences for adult sexual assault prosecuted by indictment. However, the Court also held that a conditional sentence will rarely constitute a fit sentence for a sexual assault involving aggravating circumstances, such as penile penetration.
[106] The majority judgment in R.S. took a similar approach to sexual assaults that fall at the “higher end of [the] range” of wrongful conduct:
[4] … Conditional sentences will rarely, if ever, be proportionate in the context of violent sexual assault cases …
…
[24] Parliament’s decision to expand the availability of conditional sentences by repealing s. 742.1(f)(iii) did no more than make conditional sentences available in a wider range of circumstances. It did not have the effect of rendering conditional sentences appropriate or inappropriate in any particular circumstances. Sentencing remains a discretionary decision that courts must make, governed by the parameters established by the Criminal Code.
[25] … The principles that govern sentencing remain unchanged. It is for the court to craft the appropriate sentence in every case, and the primary consideration for the court is proportionality.
…
[27] … Sexual assault is defined in terms of sexual touching without consent, a wide spectrum of conduct that ranges from touching to forced intercourse. It may be that, in some circumstances, a conditional sentence is appropriate for sexual assault at the lowest end of the range of wrongful conduct. But there is no basis to suppose that it is appropriate for sexual assault at the higher end of that range.
[Emphasis added.]
[107] Before us, the respondent acknowledged this line of authority. Moreover, even though T.H. and Henry both addressed conditional sentences within the context of penile penetration, the respondent accepted that a conditional sentence will also be rarely available for an adult sexual assault with aggravating circumstances that does not involve penile penetration. This was a reasonable concession and jurisprudentially sound.
[108] However, the respondent stressed that in amending the Criminal Code in 2022, Parliament made a considered choice to reinstate conditional sentences and says that amendment must be given meaningful effect. In support of this argument, he pointed to the following comments of Justice MacKenzie in T.H.:
[60] I do agree, however, with the Ontario Court of Appeal that although conditional sentences are now available in sexual assault cases, they will rarely be proportionate in violent sexual assault cases (R.S., at para. 4). But at the same time, I also note Justice Paciocco’s statement in his concurring reasons that “[i]t would be an error in principle to hold that conditional sentences are not available in sexual offence cases because denunciation and deterrence are the primary sentencing goals, or based solely on the kind of sexual intrusion that has occurred” (R.S., at para. 78).
[61] I would emphasize the following observations of the Supreme Court of Canada in Proulx:
116 Sentencing judges will frequently be confronted with situations in which some objectives militate in favour of a conditional sentence, whereas others favour incarceration. In those cases, the trial judge will be called upon to weigh the various objectives in fashioning a fit sentence. … There is no easy test or formula that the judge can apply in weighing these factors. Much will depend on the good judgment and wisdom of sentencing judges, whom Parliament vested with considerable discretion in making these determinations pursuant to s. 718.3.
…
[62] Finally, Justice Paciocco’s comments in R.S., which underscore the punitive nature of conditional sentences, should not be overlooked:
[71] It is important to appreciate that a conditional sentence is a sentence of imprisonment, albeit one that may be served entirely in the community. It is described as a sentence of imprisonment in s. 742.1 of the Criminal Code: Proulx, at para. 29.[3] The punitive impact of a conditional sentence should not be understated, even though an offender may not experience institutional incarceration where a conditional sentence is imposed. Conditional sentences carry significant consequences, and they are punitive, not lenient, and can be as harsh in application as sentences of incarceration: Proulx, at para. 41.
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Further, the stigma of a conditional sentence with house arrest is also significant (Proulx, at para. 105).
[Emphasis in original.]
[109] I accept, as did the Court in T.H., that it would be an error in principle for judges to instruct themselves that conditional sentences are not available in adult sexual assault prosecutions by indictment, or that they are precluded for sexual assaults involving a particular form of sexual contact: T.H. at para. 60, citing R.S. at para. 78.
[110] I also accept that a carefully crafted conditional sentence with punitive conditions can give meaningful effect to the principles of denunciation and deterrence: Wells at para. 35; Proulx at para. 41; R.S. at para. 71; T.H. at para. 62. This law is binding on us.
[111] Nevertheless, consistent with the approach I have taken to the issue of range, I consider that a judge’s assessment of whether a conditional sentence constitutes a fit sentence for an adult sexual assault with aggravating circumstances must account for society’s better understanding of the harmfulness and the wrongfulness of sexual violence. The principles established in cases such as Proulx specific to the interpretation and application of s. 742.1 of the Criminal Code continue to resonate. However, whether the pre-requisites for a conditional sentence have been met in a case involving sexual assault must be determined within the now-existing jurisprudential context for this offence, as shaped by Goldfinch, Friesen, and other of the Supreme Court of Canada’s decisions relevant to development of the law in this area.
[112] As such, to the extent that K.B. (a decision cited by the judge in this case), suggests that Parliament’s choice to reinstate conditional sentences constitutes a “dramatic change” to the sentencing approach for these offences (at para. 7), it is incorrect. The fact that conditional sentences are once again available is a “dramatic change”, but only in the sense that they had not been available as a sentencing option for quite some time, and they now are. I agree with the majority comments in R.S. that notwithstanding the 2022 amendment, the principles that govern sentencing for sexual assault remain “unchanged”: at para. 25. Those principles, including denunciation, deterrence, and proportionality, must now be assessed with the guidance provided by Goldfinch and Friesen and the new-found emphasis on the harmfulness and the wrongfulness of sexual violence.
[113] In my view, in this context, a conditional sentence will generally not constitute a fit sentence for the kind of offence at issue in this appeal without a factual finding of diminished moral blameworthiness or compelling mitigation. See, for example, R. v. M.K.M., 2024 BCSC 575 at paras. 79–82.
[114] Principally, this is because without either of those findings, a penitentiary term of at least two years’ imprisonment will generally be required in a prosecution by indictment with aggravating circumstances, even for a first-time offender. Accordingly, s. 742.1 is removed from consideration.
[115] Secondly, even where imprisonment of less than two years is imposed, an absence of diminished moral blameworthiness or compelling mitigation will generally render a conditional sentence in a case with aggravating circumstances inconsistent with the fundamental purpose and principles of sentencing. Denunciation and deterrence are accepted as paramount in these cases. Proulx recognizes that incarceration usually provides greater denunciation than a conditional sentence: at para. 102. In my view, the need to denunciate sexual violence is “so pressing” that in the absence of diminished moral blameworthiness or compelling mitigation, incarceration is generally required to express society’s condemnation of the conduct: Proulx at para. 106.
[116] In R. v. Cutfeet, 2023 MBCA 83, for example, the Manitoba Court of Appeal upheld a decision to reject a conditional sentence for an adult sexual assault in which the offender got into bed with the victim while she was sleeping, pulled her pants and underwear down, and put his hand on her breast: at para. 3. There was neither penile nor digital penetration. Notwithstanding the presence of Gladue factors that justified a sentence of less than two years (14 months’ imprisonment and 12 months’ probation), the sexual assault was found to have involved a “significant violation of the [victim’s] personal and bodily integrity” and had “considerable impact” on her: at para. 19. Mr. Cutfeet was ordered to serve his sentence in a custodial institution.
[117] Indeed, prior to conditional sentences being removed as a sentencing option for indictable adult sexual assault, this form of sentence was frequently rejected in cases involving a highly intrusive sexual assault and/or other aggravating features, even where the judge imposed a sentence of less than two years’ imprisonment.
[118] For an example of British Columbia cases, see: R. v. B.S.B., 2010 BCCA 40; R. v. Kontzamanis, 2011 BCCA 269; and R. v. Greenhalgh, 2012 BCCA 236.
[119] See also Wells from the Supreme Court of Canada, in which the Court upheld a 20-month term of conventional imprisonment in a case involving a sleeping or unconscious 18-year-old victim (vaginal abrasions, but no evidence of penile penetration). In R. v. R.A.R., 2000 SCC 8, that same Court overturned a six-month conditional sentence imposed for a sexual assault involving digital penetration by an employer against a victim in her early twenties, and substituted a one-year custodial term with three years of probation on the basis of aggravating factors, including: an abuse of authority; the violent and demeaning nature of the acts; the vulnerability of the victim; and the harm done to the victim’s career and family life: at para. 31.
[120] Both of these cases were pre-Friesen and heard as companion cases to Proulx, in which the Court made clear that a conditional sentence can be both denunciatory and deterrent. And yet, that form of sentence was denied.
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