WARNING
The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(2.1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1) to (3), read as follows:
486.4 (2.1) Victim under 18-other offences- Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.
(2.2) Mandatory Order on Application — In proceedings in respect of an offence, other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall
(a) as soon as feasible, inform the victim of their right to make an application for the order;
(b) on application of the victim or the prosecutor, make the order; and
(c) if an order is made, as soon as feasible, inform the victim of the existence of the order and of their right to apply to revoke or vary it.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under any of subsections 486.4(1) to (3) or subsection 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
CITATION: R. v. H.A., 2026 ONCJ 486
DATE: 2026 08 21
COURT FILE No.: Hamilton 24-47100254
BETWEEN:
HIS MAJESTY THE KING
— AND —
H.A.
Before Justice J.P.P. Fiorucci
Heard on August 13, 2026
Reasons for Judgment on Breach of Conditional Sentence Order
released on August 21, 2026
Bruce Sosa........................................................................................... counsel for the Crown
Asgar Manek........................................................................... counsel for the offender H.A.
Overview
[1] Conditional sentences of imprisonment, introduced in September 1996, permit offenders who meet specified statutory criteria to serve a sentence of imprisonment in the community. Often equated with house arrest, they are commonly perceived as more lenient than institutional custody, particularly when imposed for serious offences.
[2] In R. v. Proulx, 2000 SCC 5, the Supreme Court of Canada observed that Parliament introduced conditional sentences as a means of addressing overincarceration. However, the Court repeatedly emphasized that a conditional sentence, as a substitute for incarceration, should ordinarily include punitive conditions that significantly restrict an offender’s liberty. House arrest, for example, should be the norm rather than the exception. The Court further held that where an offender breaches a condition of the sentence without reasonable excuse, there should be a presumption that the balance of the sentence be served in custody. However, Parliament has provided a graduated range of responses to a breach of a conditional sentence, leaving it to the sentencing judge to determine the appropriate disposition in light of the circumstances of the breach and the offender.
[3] On November 10, 2025, I sentenced H.A. to a conditional sentence of imprisonment of two years less a day, followed by two years’ probation, for offences involving the prolonged abuse of her two young sons. The Crown had sought a penitentiary sentence of three years. My reasons for imposing a conditional sentence rather than a carceral sentence are reported at R. v. H.A., 2025 ONCJ 605.
[4] On two occasions in May 2026, H.A. breached the house arrest condition of her conditional sentence. She was arrested and has remained in custody pending the breach proceedings. At the breach hearing, she admitted the breaches and has remained in custody awaiting disposition under s. 742.6(9) of the Criminal Code.
[5] The Crown seeks termination of the conditional sentence order and an order committing H.A. to custody for the balance of her sentence. Defence counsel submits that the time H.A. has spent in custody since her arrest is sufficient. Counsel requests that no further action be taken and that H.A. be allowed to serve the remainder of her conditional sentence in the community on the original conditions. These reasons explain why I am terminating the conditional sentence order and directing that H.A. serve the remainder of her sentence in custody.
Original Sentencing Proceedings
[6] Over nearly two years, H.A. repeatedly assaulted her two young boys. She pleaded guilty to three counts of assault with a weapon and six counts of assault. She further admitted that 54 videos depicted her assaulting the children, frequently with weapons, including a couch, a plate and a thermos. H.A. physically abused her children by slapping, hitting, shaking, kicking, pushing, and throwing them.
[7] In my sentencing decision of November 10, 2025, I found that H.A.’s offences were exceptionally serious. The prolonged physical abuse of her two sons engaged multiple statutory aggravating factors, including a breach of parental trust and authority, and the significant emotional harm inflicted on particularly vulnerable victims who were nine and five years old when their father reported the offences to police. Denunciation and deterrence were the primary sentencing objectives.
[8] Notwithstanding those aggravating features, I concluded that a conditional sentence order was a fit and appropriate sanction. In doing so, I placed significant weight on the principles of restraint and rehabilitation. H.A. had no prior criminal record, accepted responsibility for her actions, demonstrated genuine remorse and insight, and had made meaningful rehabilitative progress by engaging in treatment and programming to address mental health challenges and deal with anger and parenting issues. I was satisfied that her risk could be safely managed in the community and that a community-based sentence remained consistent with the fundamental purposes and principles of sentencing.
[9] However, I found that the seriousness of the offences required that any conditional sentence be at the upper limit of what could lawfully be imposed. Accordingly, I imposed the maximum available conditional sentence of two years less a day, followed by probation. The stringent and punitive conditions of the order, including GPS monitoring throughout the conditional sentence, were designed to ensure that the sentence gave primary consideration to denunciation and deterrence of the abuse of vulnerable children, promoted the offender’s sense of responsibility, protected the community, and continued to support rehabilitation. The first 12 months were to be served under home confinement, subject only to limited exceptions, followed by a curfew for the balance of the order except in cases of medical emergency or with the supervisor’s prior written approval.
[10] At the conclusion of the sentencing hearing, I asked H.A. whether she understood that a breach of any condition of the conditional sentence could result in her serving the balance of the sentence in custody. She indicated that she did. H.A. also signed the conditional sentence order acknowledging that she understood that failing to comply with any part of it may result in arrest or imprisonment.
Application to Vary the Conditional Sentence
[11] On April 1, 2026, H.A. applied to vary her conditional sentence order by removing the GPS monitoring condition. She relied on a letter from her family physician and her own submissions describing pain, skin irritation, sleep disruption, and declining mental health, which she attributed to the ankle monitor.
[12] Although I was concerned about H.A.’s reported physical discomfort and mental health challenges, the evidence was insufficient to justify removing a condition that formed an important part of the sentence. At sentencing, I found that continuous GPS monitoring for the entire duration of the conditional sentence was necessary to ensure the sentence reflected the principles of denunciation and deterrence and provided meaningful accountability. In dismissing her application, I explained to H.A. that the GPS monitoring condition was an integral component of the sentence imposed, one that was consistent with the disposition sought by her counsel at sentencing.
[13] I encouraged H.A. to continue working with her supervisor to address any issues arising from the monitor, including exploring measures to reduce her discomfort. I advised that she could renew her application to vary the order upon providing more complete medical and other relevant evidence.
The Breaches of the House Arrest Condition
[14] H.A. conceded, through her counsel, that the documentary evidence filed made out breaches of the conditional sentence order. She did not seek to establish any reasonable excuse for non-compliance: s. 742.6(9) of the Criminal Code.
[15] The conditional sentence of imprisonment included a home confinement or “house arrest” condition for the first 12 months. The home confinement condition had some exceptions. One of the exceptions allowed H.A. to be away from her residence with the prior written approval of her supervisor. Somewhat surprisingly, on April 27, 2026, H.A. requested and was granted permission by her supervisor to be away from her residence daily between the hours of 1:30 p.m. and 9:45 p.m. to attend the Hamilton Mountain Mosque located at 1545 Stone Church Road East in Hamilton.
[16] On May 8, 2026, H.A. attended three locations in Burlington contrary to her home confinement condition. She was at 1400 Lakeshore Road from 4:01 p.m. to 4:22 p.m., at 2048 Old Lakeshore Road from 4:42 p.m. to 4:48 p.m., and at 1125 Lakeshore Road from 5:26 p.m. to 5:30 p.m. The supervisor reports that H.A. was expected to be at the Hamilton Mosque during those times and did not have permission to be in Burlington.
[17] On May 17, 2026, H.A. attended Van Wagner’s Beach in Hamilton without permission. She left her residence at 5:25 p.m. and returned at 8:34 p.m. The supervisor reports that H.A. was authorized to attend the Hamilton Mosque during that period and had not been granted permission to be at the beach.
The Offender’s Present Circumstances
[18] Prior to her arrest on May 25, 2026, for the alleged breaches, H.A. lived with her 19-year-old daughter. Defence counsel filed records from St. Joseph's Healthcare Hamilton confirming that H.A. attended hospital on May 7, 2026. During that attendance, H.A. reported that she had attempted suicide by overdosing on Tylenol. The records suggest that this reported overdose was connected to H.A.’s claim that she had experienced discrimination and had been assaulted in the community because she wears a hijab. H.A. testified that she had been assaulted two or three times on the street for wearing a hijab. She also testified that she has a pituitary gland condition, possibly involving a small tumour, and that she sees a specialist every three months for bloodwork.
[19] Defence counsel also filed letters of support and confirmation that H.A. completed the Mindful Living program at the Hamilton Urban Core Community Health Centre on March 17, 2026.
[20] The evidence adduced at the hearing did not provide any meaningful new information about H.A.’s personal circumstances beyond what was before the court at the original sentencing hearing. Nor did H.A. provide any evidence explaining her non-compliance with the home confinement condition on May 8 and 17, 2026.
Legal Principles
[21] There is a good deal of trust placed in those who receive conditional sentences: R. v. Menezes, 2023 ONCA 838, at para. 71. When they breach that trust without reasonable excuse, there is a presumption that they will serve the balance of the sentence in a custodial setting: Menezes, at para. 71; Proulx, at paras. 21 and 39; R. v. Antaya, 2022 ONCA 819. It is the real threat of incarceration that helps ensure compliance with the conditions imposed and distinguishes conditional sentence orders from probation orders: Menezes, at para. 71; Proulx, at para. 21.
[22] Parliament intended that committal to prison be a real threat both to indicate to the offender the seriousness of violation of the terms and to reassure the community: R. v. W.(J.), 1997 CanLII 3294 (ON CA), [1997] O.J. No. 1380 (Ont. C.A.). It is important to maintain the integrity of the conditional sentence regime which is accomplished when the community understands that conditional sentences are not just another form of probation: R. v. Filippelli, 2002 CanLII 41455 (ON CA), [2002] O.J. No. 3890 (Ont. C.A.).
[23] In R. v. Ramsaran, [2008] O.J. No. 3163 (Ont. S.C.J.), at para. 65, Justice Hill stated:
Segments of the public remain suspicious that conditional sentences are not imprisonment and that the terms of the orders are not rigorously enforced. Breach hearing dispositions should contribute to public confidence in s. 742.1 sentences.
[24] However, as with any sentencing decision, selecting the appropriate remedy under s. 742.6(9) of the Criminal Code is an individualized process: Antaya, at para. 9. The provision establishes a graduated range of responses, from taking no action, to varying the optional conditions of the order, to directing the offender to serve part of the unexpired sentence in custody before resuming the conditional sentence, with or without amended conditions. At the most restrictive end of the spectrum, the court may terminate the conditional sentence and order the offender to serve the balance of the sentence in custody: Antaya, at para. 8.
[25] In deciding which order is appropriate, the sentencing judge must consider all of the circumstances, including the nature and circumstances of the breach, the circumstances of the offender, the time remaining on the conditional sentence order, and the ordinary principles of sentencing (including, for example, denunciation, general and specific deterrence, proportionality, and restraint): Antaya, at para. 9. Where the original conditional sentence was longer than the carceral sentence that would otherwise have been appropriate, that may be a relevant consideration in deciding whether termination of the order is a proportionate response to the breach: Antaya, at para. 9. These factors must be considered within the particular context of the conditional sentencing regime: Antaya, at para. 9.
[26] Because the presumption of incarceration for breach of a conditional sentence is rebuttable, not every breach warrants incarceration: Ramsaran, at para. 65; R. v. Langley, 2005 BCCA 478, at para. 6. In some instances, for example where extenuating circumstances exist, other less drastic options may fulfil the necessary objectives of sanctioning the particular breach of a conditional sentence order: Ramsaran, at para. 65.
[27] A primary consideration in the exercise of discretion pursuant to s. 742.6(9) is the seriousness of the breaches and whether the offending conduct itself amounts to the commission of a criminal offence: Ramsaran, at para. 65; Filippelli, at para. 25.
[28] The order imposed for a breach of a conditional sentence serves not only as a sentence for the breach, but also as a means to address whether it is still appropriate for the offender to serve the original sentence, or some portion of it in the community: Antaya, at para. 16.
The Appropriate Disposition
[29] The circumstances of the original offences were extremely serious. H.A.’s prolonged abuse of her vulnerable young children caused significant emotional harm that is impossible to quantify and constituted an egregious breach of trust. These circumstances required me to give primary consideration to the objectives of denunciation and deterrence: R. v. Friesen, 2020 SCC 9; s. 718.01 of the Criminal Code.
[30] The sentencing hearing was contested. The Crown sought a penitentiary sentence of three years, while the defence argued for a sentence of less than two years to be served in the community. I concluded that a fit custodial sentence was less than two years and distinguished the principal authority relied on by the Crown. This is not a case in which a conditional sentence was imposed for a period longer than the carceral sentence that would otherwise have been appropriate. In light of the aggravating factors and the sentencing principles set out in Friesen, a carceral sentence of two years less a day would have been wholly appropriate.
[31] In imposing a conditional sentence of the maximum duration, I recognized the primacy of denunciation and deterrence and that, as the seriousness of the offence increases, so too should the length and severity of the conditional sentence: Proulx, at para. 127. The sentence was intended to achieve both punitive and restorative objectives. Consistent with Proulx, a conditional sentence can provide sufficient denunciation and deterrence, even where restorative considerations are less significant, depending on the sentence’s duration and conditions and the circumstances of the offender and the community in which it is served. The mitigating circumstances, including H.A.’s guilty pleas, genuine remorse, lack of a prior record, participation in programming and psychotherapy, and the need to give effect to the principle of restraint, contributed to my conclusion that a conditional sentence was appropriate.
[32] H.A. was repeatedly advised of the importance of complying with her conditional sentence and the consequences of any breach. At the sentencing hearing on November 10, 2025, I cautioned her that a breach could result in her serving the balance of the sentence in custody, which she understood. On November 14, 2025, her supervisor reviewed the conditions and consequences of an alleged breach, and H.A. again indicated her understanding. On April 1, 2026, I reiterated that GPS monitoring was an essential component of my decision to allow her to serve her sentence in the community.
[33] House arrest is among the most onerous conditions available under a conditional sentence order. Confinement to one’s residence, subject only to limited exceptions, combined with GPS monitoring, constitutes a significant restriction on liberty. Such conditions make a conditional sentence a meaningful sanction and serve to approximate the punitive effect of incarceration while permitting the sentence to be served in the community.
[34] H.A. sought and obtained a significant exemption from her supervisor permitting her to be absent from her residence for more than eight hours each day, purportedly to attend religious observances at her mosque. It appears that H.A. relied on her religious beliefs to gain her supervisor’s trust and secure permission to be away from her residence for virtually the entire afternoon and evening. On two separate occasions, H.A. breached both the trust I placed in her when imposing the conditional sentence and the trust her supervisor placed in her by granting the exemption she requested.
[35] H.A.’s blatant breach of the home confinement condition undermines the effectiveness of a conditional sentence as a form of punishment that addresses the principles of denunciation and deterrence, particularly in cases involving serious offending. The breaches were wilful, not technical. They were not the result of confusion, mistake, or circumstances beyond the offender’s control. The offender was fully aware of the home confinement requirement and consciously chose not to comply with it.
[36] On May 8, 2026, H.A. was in a different city and attended three separate locations for brief periods. She provided no explanation for these absences from her approved residence or her failure to be at the mosque. On May 17, 2026, she spent approximately three hours at a local beach and again offered no explanation for being away from her residence or the mosque.
[37] I am acutely aware of H.A.’s personal circumstances, including her significant history of mental health challenges, which I addressed in my sentencing reasons. As I recognized at sentencing, those challenges contributed to the offences against her children, while her substantial progress in addressing her mental health, anger, and parenting issues weighed strongly in mitigation. These factors informed my decision to exercise restraint and impose a conditional sentence that advanced both punitive and restorative objectives.
[38] I take into consideration that, as of today, H.A. has served 89 days of her conditional sentence in custody. This represents almost three months of the two-years-less-a-day sentence imposed.
[39] In determining the appropriate disposition under s. 742.6(9), I have also considered the consequences of family separation: R. v. Habib, 2024 ONCA 830, at paras. 44-45. Courts seek to mitigate the effects on an offender’s family, recognizing that “interfering with this foundational social institution … can endanger community safety and society’s well-being”: Habib, at para. 46. That said, these considerations must not dominate the analysis. Termination of the conditional sentence of imprisonment will no doubt have a significant and detrimental impact on H.A.’s daughter. However, these are consequences that were foreseeable to H.A. when she chose to deliberately disregard the home confinement condition.
[40] H.A.’s deliberate and unexplained breaches of the home confinement condition on two separate occasions, including spending approximately three hours at a beach during the second breach, are serious violations of a fundamental condition of the conditional sentence order. Such conduct risks undermining public confidence in the conditional sentence regime as a sentencing tool capable of achieving the objectives of denunciation and deterrence. While the presumption in favour of termination under s. 742.6(9) is rebuttable, an offender who deliberately breaches a strict home confinement condition cannot reasonably expect that the absence of prior breaches, or the fact that the conduct is not itself a criminal offence, will warrant a less restrictive statutory response.
[41] In this case, I find that the principles of denunciation and specific and general deterrence require termination of the conditional sentence and an order that H.A. be committed to custody for the balance of the sentence. Even taking into account the principles of restraint and rehabilitation, I am satisfied that H.A. has demonstrated an unwillingness or inability to comply with the conditions of the order. Any lesser remedy, including an order requiring that only a portion of the unexpired sentence be served in custody, would not adequately respond to the nature of the breaches when viewed in the context of the original offences. Having regard to the seriousness of the breaches, the circumstances of the original offences, and the need to maintain public confidence in the conditional sentence regime, I am satisfied that termination is the appropriate remedy.
[42] The conditional sentence was scheduled to expire in November 2027. As a consequence of its termination, H.A. will have served approximately six months of the sentence in the community under house arrest conditions and, including the period to be served following termination, up to eighteen months in custody. Considering the totality of the sentence, the circumstances of the multiple offences, and H.A.’s personal circumstances, I am satisfied that the resulting sanction is not disproportionate.
Conclusion
[43] Pursuant to s. 742.6(9)(d) of the Criminal Code, the conditional sentence order is terminated, and H.A. is committed to custody until the expiration of the sentence.
Released: August 21, 2026
Signed: Justice J.P.P. Fiorucci