Ontario Court of Appeal Opens Door to House Arrest

On July 24, 2020 the Ontario Court of Appeal (“ONCA”) released a potentially monumental decision. In R v Sharma, 2020 ONCA 478, a majority of the panel of the Ontario Court of Appeal struck down portions of the Criminal Code which prevented judges from being able to grant a conditional sentence for many offences.

Conditional sentences are what are commonly known as house arrest sentences. Although they are legally a jail sentence, they allow the offender to serve the sentence in the community, routinely in a house arrest scenario. In the Criminal Code a conditional sentence is available if a judge finds that an appropriate sentence is a jail term that is less than two years, that serving the sentence in the community would not endanger the safety of the public and that there is no mandatory minimum jail term for the offence. The criminal code also sets out several offences and types of offences for which a conditional sentence may not be granted, even if all other conditions are satisfied. Among other offences these include any offence proceeded with by indictment with a maximum available sentence of 14 years or life as well as any offence with a maximum sentence of 10 years that involved the import, export, trafficking or production of drugs. In R v Sharma the ONCA struck down the provisions that prevented conditional sentences for those 2 categories of offences, resulting in conditional sentences to be available for them immediately.

The ONCA found that these sections unfairly discriminate against Aboriginal offenders based on their race as well as that they were arbitrary and overbroad in relation to their purpose and where therefore in violation of the Charter of Rights and Freedoms. That means those restrictions on conditional sentences can no longer form part of the law, for now. Certainly, this case will be appealed to the Supreme Court of Canada and a panel of justices there could overturn the decision of the ONCA and put those sections back into operation. Also, in theory, the federal government could potentially re-enact those provisions specifically stating that they are doing so despite the fact they recognize that the provisions violate the Charter of Rights and Freedoms, although that scenario is quite unlikely.

If the Supreme Court of Canada upholds the ONCA’s decision and adopts the ONCA’s reasoning that will likely also open doors for other accused persons to bring further challenges to some of the remaining restrictions on conditional sentences that are still in effect. Currently, the Criminal Code excludes a conditional sentence for the offences of prison breach, criminal harassment, sexual assault, motor vehicle theft, theft over $5000, being unlawfully in a dwelling house and several other offences if they are proceeded with by indictment. Because the ONCA decision finds that restricting the category of drug related offences from being eligible for a conditional sentence is arbitrary and overbroad in relation to their purpose, then it may logically follow that restricting these other specific offences may be arbitrary and overbroad in relation to their purpose and therefore a breach of the Charter of Rights and Freedoms potentially making conditional sentences available for those offences in the future.