Background
Following a Provincial Court trial, B.S.H. was convicted of criminal harassment, being unlawfully in a dwelling-house, sexual assault and assault arising from an incident involving a former intimate partner. After repeatedly calling and messaging the victim, he forced open her storm door, entered her home using a key, assaulted and sexually assaulted her, degraded and threatened her, and continued contacting her after leaving.
The sentencing judge imposed a global sentence of two years less a day, to be served in the community under a conditional sentence order with strict conditions including house arrest. The sentence was followed by one year of unsupervised probation and included ancillary orders. The Crown sought leave to appeal and requested four years’ imprisonment, arguing that the sentence minimized the gravity of the sexual and intimate partner violence, overemphasized the offender’s personal circumstances and failed to account properly for the four distinct offences.
The Court’s Holding
The Court of Appeal granted leave but dismissed the sentence appeal. It held that the sentencing judge recognized the gravity and harmfulness of the offences, treated denunciation and deterrence as paramount and reasonably considered both the aggravating circumstances and the offender’s mitigating circumstances. Although the sentence was at the low end of the available range, the Crown had not established a material error in principle or a demonstrably unfit sentence.
The sentencing judge erred by failing to state a separate sentence for each conviction and should have expressly applied the two-stage framework governing conditional sentence orders. Those shortcomings were not material, however, because the reasons and record showed an intelligible path to the result: the offences were closely connected, the global sentence accounted for all of them, community safety would not be endangered and a conditional sentence with punitive conditions was consistent with sentencing principles.
The Court rejected the proposition that sexual assault and intimate partner violence necessarily require a penitentiary sentence. Conditional sentences will rarely be fit for sexual assaults involving aggravating circumstances, but Parliament restored their legal availability for sexual assault in 2022, and fitness must be determined from the individual facts. The Court varied the sentence only to credit time spent on judicial interim release after the conditional sentence was suspended, leaving a go-forward sentence of 634 days and all ancillary orders intact.
Key Takeaways
- A conditional sentence remains legally available for sexual assault where a sentence under two years is fit, community safety is not endangered and community service of the sentence accords with the purposes and principles of sentencing.
- Such sentences will rarely be appropriate for aggravated sexual assault, but appellate courts cannot substitute their own weighing of sentencing factors absent a material error in principle or a demonstrably unfit sentence.
- When sentencing multiple offences, judges should specify the sentence for each conviction and explain any adjustments for proportionality or totality, although failure to do so is not necessarily a material error.
Why It Matters
The decision confirms that the 2022 amendments restoring conditional sentences for indictable sexual assault have practical effect even in cases involving serious intimate partner violence. No categorical rule excludes a conditional sentence, though denunciation, deterrence, victim vulnerability and the aggravating nature of intimate partner abuse remain central to the analysis.
It also underscores the highly deferential standard on sentence appeals: an appellate court may consider a different or higher sentence fit without being entitled to intervene in the sentence actually imposed.