R. v. J.F.V.D., 2025 BCCA 4, at paragraphs 77, 79, 81 and 82:
In my view, this case review demonstrates well that there must be something unique or “rare” in the circumstances presented before a CSO can fairly be characterized as fit. The examples cited in C.K. included Gladue factors, early guilty pleas, and/or an extreme separation from community.
Despite recognizing the importance of appreciating the harm caused to P.D. and the wrongfulness of the respondent’s offence, those factors did not feature in the judge’s analysis regarding the appropriateness of a CSO. Rather, the judge’s primary focus was on the collateral consequences of a jail sentence on the respondent.
As the Court in Friesen concluded, prioritizing the objectives of denunciation and deterrence “confirms the need for courts to impose more severe sanctions for sexual offences against children”: at para. 101. That need is directly related to the form of sanction required, as separation from society reinforces and gives practical effect to denunciation and deterrence.
Section 718.01 and Friesen and C.K. and the plethora of cases that follow make clear that denunciation and deterrence are particularly pressing objectives in a case like this. The imposition of a CSO, in these circumstances with this offender, diminished the objectives of denunciation and deterrence.
R. v. A.L., 2025 ONCA 9, at paragraphs 19 to 22:
This court addressed the exceptionality of conditional sentences for sexual offences against children in R. v. M.M., 2022 ONCA 441. In M.M., at para. 16, this court noted that, given the Supreme Court’s instructions in Friesen, “[c]onditional sentences for sexual offences against children will only rarely be appropriate” and “[t]heir availability must be limited to exceptional circumstances that render incarceration inappropriate”. As an illustration of an exceptional circumstance, this court gave the example of medical hardship that could not be adequately addressed within a correctional facility, expressly stating that exceptional circumstances were not limited to that example.
Chief Justice Tulloch made a similar point in R. v. Pike, 2024 ONCA 608, 440 C.C.C. (3d) 281, at para. 182, where he explained this court’s use of the term “exceptional circumstances” in M.M. He stated that M.M. used “exceptional circumstances” as shorthand for personal circumstances and mitigating factors that are sufficiently compelling to make a conditional sentence proportionate. He also noted that this interpretation is consistent with the principle that “sentencing must focus on proportionality, not pigeonholing cases into ill-defined exceptional circumstance categories”.
While exceptional, there is no rigid rule that conditional sentences can never be imposed in the appropriate case: see, for example, R. v. Faroughi, 2024 ONCA 178, 435 C.C.C. (3d) 1. Reflecting the individualized nature of sentencing, conditional sentences for sexual offences against children have been upheld in exceptional cases where the court is satisfied that the sentencing judge adverted to the relevant governing principles and there was no basis to interfere with the factual findings of exceptionality: see, for example: R. v. Singaqti, 2024 NUCA 10, at para. 15; R. v. T.J.H., 2023 YKCA 2, at para. 27; R. v. Germain, 2022 ABCA 257, at paras. 84, 85; R. v. R.B.B., 2024 NSCA 17, at paras. 41, 45. That is the case here.
As reflected in her reasons, the trial judge was well aware of the instructions from the Supreme Court in Friesen. She referred to it as a case “sending a very strong message about the need for denunciatory and deterrent sentences in offences involving child victims.”