The conditional sentence debate continues

R v Ranatunga, 2025 ONCA 557: The latest in a string of split decisions from Ontario's apex court on the fraught question of when a conditional sentence may be imposed for serious offences.

In R v RS, 2023 ONCA 608, the majority allowed an appeal from a conditional sentence imposed on an Indigenous first offender who was found guilty of choking and sexual assault. Coroza JA held that "[c]onditional sentences will rarely, if ever, be proportionate in the context of violent sexual offences such as this". In dissent, Paciocco JA would have affirmed the sentence, not because he agreed with it, but because the question of what sentence is fit is generally the trial judge's call to make.

In R v Burke-Whittaker, 2025 ONCA 142, the majority dismissed an appeal from a conditional sentence imposed on a youthful first offender who pled guilty to possession of a stolen firearm and admitted to recklessly firing it during a shootout. But don't take that as an endorsement. Hourigan and Favreau JJA held that the sentence both reflected error in principle and was demonstrably unfit to boot. Hourigan JA would have sent Mr. Burke-Whittaker straight to jail. Favreau JA, recognizing the appellant's significant rehabilitative potential and progress on his conditional sentence, dismissed the appeal in spite of the error. Dawe JA, in a third set of reasons, dismissed for the same reasons Paciocco JA did in RS--in sentence appeals, deference is the word of the day. In the result, Mr. Burke-Whittaker was spared reincarceration.

Which brings us to Ranatunga. The trial judge imposed a conditional sentence on a defendant found guilty of removing a condom during otherwise consensual intercourse. Gillese JA would have found the sentence manifestly unfit: "[a] conditional sentence is generally inappropriate in sexual assault cases involving forced penetration given the gravity of the offence, the high risk of serious harm that it poses, and the need to denounce such conduct." For the majority, Fairburn ACJO--like Paciocco JA in RS and Dawe JA in Burke-Whitaker--deferred to the trial judge's balancing. In her view, "[w]hile the sentencing judge imposed a light sentence ... light sentences do not make for wrong or erroneous sentences."

I hope I am not misreading a positive general direction in the arc of these three decisions. I was critical of the majority in RS when it was released and agree with the Paciocco, Dawe, and Fairburn view of lenient sentences. It is open to trial judges to impose below-range sentences in serious cases, including conditional sentences, where they feel that is the fit sentence in all the circumstances. My concern with RS is that it would have a chilling effect on conditional sentences for vulnerable defendants, precisely whom they were designed for. Hopefully Ranatunga breathes some new life into the CSO as a valid sanction, even in serious cases.