Sentencing judge refused to issue conditional sentence order
The Ontario Court of Appeal has noted that it has yet to rule upon the constitutionality of s. 742.1(f)(iii) of the Criminal Code, which makes conditional sentence orders unavailable in sexual assault cases.
The Ontario Superior Court of Justice found the applicant in R. v. Dubeau, 2022 ONCA 685 guilty of sexual assault against his girlfriend under the Criminal Code. The Crown asked for a three-year imprisonment sentence. The defence, on the other hand, sought a 12-to-18-month sentence, to be served in the community.
The sentencing judge imposed a 23-month imprisonment sentence, a 12-month probation order, and other ancillary orders. She refused to issue a conditional sentence order (CSO). At the time, the applicant was 24 years old, had the inattentive type of ADHD, and had no prior criminal record.
The sentencing judge explained why a CSO was inappropriate, citing R. v. A.J.K., 2022 ONCA 487, which tackled the sentencing principles for cases of sexual violence against intimate partners, and considered the applicant’s ADHD and other mitigating factors such as remorse, treatment, rehabilitative efforts, and family support when determining the sentence.
The applicant filed an application for bail pending his sentence appeal. He argued that the sentencing judge, in finding that a CSO was unavailable to him, failed to consider the interplay between his autism and ADHD, the circumstances of the case, and the fact that a CSO would also serve the goals of denunciation and deterrence.
Bail denied for lack of sufficient merit
The Court of Appeal dismissed the application for bail pending the sentence appeal. The applicant failed to show that his appeal had sufficient merit under s. 679(4)(a) of the Criminal Code such that a detention order would lead to unnecessary hardship, the appellate court said. However, the court refrained from granting or refusing leave to appeal at this stage, given the application’s unusual circumstances.
According to the appellate court’s decision, the applicant was in a “legal quagmire” because the Ontario Court of Appeal has not addressed the constitutionality of s. 742.1(f)(iii) of the Criminal Code – which states that a CSO is unavailable for sexual assault, among other offences prosecuted by indictment – although the Ontario Superior Court of Justice has done so.
The decision noted that the appellate court in R. v. Sharma, 2020 ONCA 478, struck down related Criminal Code provisions, namely ss. 742.1(c) and (e)(ii), pursuant to ss. 7 and 15 of the Canadian Charter of Rights and Freedoms.
In the present case, the sentencing judge did not litigate the constitutional issue, presumably because she considered herself bound, based on vertical stare decisis, by Superior Court decisions finding that s. 742.1(f)(iii) violated the Charter, the appellate court noted.
The appellate court said that, without a constitutional challenge, the appellant was asking the court to impose a sentence that the Criminal Code specifically prevented. However, Crown counsel advised that the issue of s. 742.1(f)(iii)’s constitutionality was on its way to the appellate court via still unperfected appeals from both the Crown and the defence.