Law360 Canada (October 16, 2026, 11:02 AM EDT) --
 |
| John L. Hill |
The Manitoba Court of Appeal has upheld a sentence of two years less a day to be served in the community for a man convicted of criminal harassment, unlawfully entering a dwelling house, sexual assault and assault against his former intimate partner (
R. v. B.S.H., 2026 MBCA 70). The decision recognizes the seriousness of domestic and sexual violence while reaffirming the deference owed to sentencing judges.
The Crown sought leave to appeal and requested four years’ imprisonment. The court granted leave but dismissed the appeal, finding no material error in principle or demonstrably unfit sentence.
The offences occurred on Aug. 26 and 27, 2023, following the breakdown of a 10-month relationship. The victim had given the accused a key to her home.
On Aug. 26, he entered her home and accused her of infidelity. Later, he sent numerous profane and threatening messages and attempted to telephone her 68 times. Fearing he might return, the victim locked her doors when she arrived home at approximately 3:30 a.m.
RedVector: ISTOCKPHOTO.COM
About an hour later, the accused forced open the storm door and entered using his key. In the victim’s bedroom, he grabbed her wrist, removed her bedcovers, pushed her head against a wall, insulted and humiliated her, and threw water in her face. He also touched her anus and vagina with his finger while making threatening remarks.
Despite repeated requests that he stop and leave, he continued berating her. The victim eventually stood outside screaming for him to go. After leaving, he telephoned her another 52 times over approximately 90 minutes and returned to knock on her back window. Police arrived later that morning.
After his trial in provincial court, the accused, then 41, had no criminal record, a positive employment history and no identified substance-use problems. A presentence report assessed him as a low risk to reoffend generally and an average risk of sexual reoffending. He expressed remorse and complied with his release conditions.
The sentencing judge imposed a conditional sentence of two years less a day, including an absolute curfew amounting to house arrest, followed by one year of unsupervised probation. She also ordered 100 hours of community service and a 10-year order under the
Sex Offender Information Registration Act.
The judge recognized that denunciation and deterrence were paramount, acknowledging the degradation and fear inflicted on the victim. However, she considered the offences part of a single episode of domestic violence and concluded that a community-based sentence was appropriate.
The court applied the established principle that appellate intervention is justified only where a sentencing judge makes a material error in principle affecting the sentence or imposes a demonstrably unfit sentence.
In
R. v. Lacasse, 2015 SCC 64, the Supreme Court of Canada held that an appellate court cannot intervene simply because it would have weighed sentencing factors differently. This deferential approach is also reflected in
R. v. Friesen, 2020 SCC 9 and
R. v. Sheppard, 2025 SCC 29.
The court agreed that the sentencing judge should have imposed a separate sentence for each offence. In
R. v. Wozny, 2010 MBCA 115, the Manitoba Court of Appeal emphasized the importance of identifying individual penalties and explaining whether they should run concurrently or consecutively. Similarly,
R. v. S.C.C., 2021 MBCA 1 addressed the need to ensure offenders do not receive a sentencing “free ride” for additional criminal conduct.
Although the sentencing judge imposed a global sentence without specifying individual penalties, the court found no material error. Her reasons showed that she had considered all four offences and concluded that concurrent sentences were appropriate. The court was not persuaded that the accused had escaped accountability for any offence.
The central issue was whether a conditional sentence could be appropriate for sexual assault involving intimate partner violence.
Parliament amended s. 742.1 of the
Criminal Code in 2022, restoring conditional sentences for certain offences, including sexual assault prosecuted by indictment. Such a sentence is available only if imprisonment of less than two years is appropriate, community safety would not be endangered, and the sentence would be consistent with the fundamental purpose and principles of sentencing.
The court accepted that conditional sentences will rarely be appropriate for sexual assaults involving aggravating circumstances. It considered authorities including
R. v. Hanna, 2025 MBCA 47;
R. v. Merasty, 2023 SKCA 33; and
R. v. S.(R.), 2023 ONCA 608.
However, sexual assault does not automatically preclude a conditional sentence. In
R. v. Proulx, 2000 SCC 5, the Supreme Court explained that sentencing judges must balance competing objectives, including denunciation, deterrence and rehabilitation. A conditional sentence remains a sentence of imprisonment and can be punitive and restrictive.
Under
R. v. Fice, 2005 SCC 32, judges must first determine whether a conditional sentence is available and then whether it is appropriate. The sentencing judge had not expressly applied this two-stage framework or specifically referred to s. 742.1. Nevertheless, the court concluded that her reasons and the record demonstrated an intelligible path to the result.
The judge had considered the accused’s risk of reoffending, remorse, employment and compliance with bail conditions. She also imposed strict house-arrest conditions. The court found that she had recognized the seriousness of the offences and properly considered denunciation and deterrence.
The court emphasized that ss. 718.2(a)(ii) and 718.201 of the
Criminal Code identify abuse of an intimate partner as an aggravating factor and require consideration of the increased vulnerability of female victims of intimate partner violence.
The decision does not suggest that conditional sentences should ordinarily be imposed for sexual assault or intimate partner violence. The court acknowledged that imprisonment will be appropriate in most sexual assault cases involving aggravating circumstances. Its conclusion was that the decision must depend on the individual facts and applicable sentencing principles.
The ruling also reinforces the importance of transparent sentencing reasons. Judges should identify individual penalties for multiple offences and expressly apply the statutory framework governing conditional sentences. Nevertheless, deficiencies in reasons do not invariably justify appellate intervention where the record demonstrates that the correct principles were applied and the outcome is fit.
The court rejected the proposition that sexual violence and intimate partner abuse must necessarily result in a penitentiary sentence. Parliament’s restoration of conditional sentences for eligible sexual assaults must be given effect, without diminishing the importance of proportionality, denunciation, deterrence and the harm suffered by victims.
The court granted leave but dismissed the sentence appeal. Because the conditional sentence had been suspended during the appeal, the accused received credit for 64 days served under the conditional sentence and 31 days spent on judicial interim release. His remaining sentence was calculated at 634 days, with all ancillary orders remaining in force.
As the Manitoba Court of Appeal observed in
R. v. Murphy, 2011 MBCA 84, declining to interfere with a sentencing judge’s discretion is not necessarily an endorsement of the particular sentence. It reflects the deferential standard appellate courts must apply.
John L. Hill practised and taught prison law until his retirement. He holds a JD from Queen’s and an LLM in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books). His most recent book, Acts of Darkness
(Durvile & UpRoute), was shortlisted as one of five nominees for the Crime Writers of Canada’s Brass Knuckles Award for Best Nonfiction Crime Book.
Contact him at johnlornehill@hotmail.com.
The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.
Interested in writing for us? To learn more about how you can add your voice to Law360 Canada, contact Analysis Editor Peter Carter at peter.carter@lexisnexis.ca or call 647-776-6740.