Court File and Parties
Court File No.: CR-23-151 Date: 2025-12-08 Ontario Superior Court of Justice
Between: His Majesty the King -- and -- Ajay Kumar Ray, Applicant
S. Wright, for the Crown, Respondent N. Lutes, for the Applicant
Heard: December 2, 2025
Reasons for Judgment
Section 742.4(5) Application
Carnegie J. [^1]
[1] The Applicant applies under section 742.4 of the Criminal Code for variation of the Conditional Sentence Order ("CSO") made by Nicholson J. on April 10, 2025.
[2] The Applicant had been found guilty of sexual assault on November 13, 2024. He was sentenced to a 720-day CSO, of which the first 425 days contained a home confinement condition (Condition 6), followed by a curfew for the remaining 295 days. In addition to other conditions, the Applicant was required to remain within the Province of Ontario unless he had prior written permission from the Court or his supervisor (Condition 4) and he was required to perform 120 hours of community service within the first 18 months of his sentencing date, to be approved by his supervisor (Condition 17).
[3] The Applicant seeks to vary the home confinement, territorial restriction and the community service conditions, specifically:
(a) that he be permitted to travel to India to attend upon a family wedding from December 15, 2025 through to January 5, 2026; and
(b) that he be permitted to continue his community service order beyond the prescribed hours, now completed.
[4] On October 14, 2025, this application was sent to the Applicant's conditional sentence supervisor for consideration under s. 742.4(1). His supervisor did not support the requested variations, and as such it came before this court by application of s. 742.4(5).
[5] The Crown opposes both of these variation requests.
[6] For the reasons which follow, the Applicant's request to vary his home confinement condition to permit the requested international travel is dismissed. His application to continue his community service is granted such that he may volunteer at the Jet Aircraft Museum in London, Ontario two days per week until the completion of the home confinement portion of his conditional sentence order.
Factual Background
[7] The Applicant is 65 years of age, was born in India and emigrated to Canada in 2005. He has been a Canadian citizen since 2014. Prior to this conviction, he had no criminal history. He resides in London, Ontario, and was formerly a tenured professor of chemical and biochemical engineering at Western University. His conviction and sentencing resulted in his early retirement. The victim of this offence was also employed at the university.
[8] The Applicant was compliant with his previous bail release terms and has been compliant with this CSO. He has served over half of the home confinement portion of his CSO. He has filed a Notice of Appeal respecting his conviction and is pending its hearing and determination.
[9] As noted, the Applicant seeks two substantive variations to his CSO conditions, one to the mandatory requirement that he remain in the Province of Ontario, and to the discretionary requirement that he comply with his home confinement condition and perform 120 hours of community service work.
[10] First, and more particularly, the Applicant seeks to travel to India to attend a non-immediate family wedding on December 21, 2025. While there, the Applicant also intends to visit with his eldest sister who is experiencing "health problems". To accommodate this event, given the complication of such extensive travel, he seeks permission to not only leave Ontario, but to be released from his home confinement obligations between December 15, 2025, through to January 5, 2026 -- although some flexibility at the court's discretion is invited.
[11] Second, the Applicant seeks permission to extend his community service condition in the CSO. He has completed 217 hours on a 120 hour order and seeks to continue volunteering at his placement with the Jet Aircraft Museum. Submitted with his Application Record is a supportive letter from the museum's president, who has monitored his volunteer service and speaks very highly of the contribution that the Applicant continues to make at this venue. It is noteworthy that the museum, aware of the Applicant's antecedent, has ensured public safety by restricting his isolated access to female visitors.
[12] As part of this application, the Applicant's CSO supervisor testified. She characterized the Applicant's participation with this CSO as "superficially complaint". He has always presented himself in a timely manner, attended required counseling, and completed his community service requirements, but his failure to take responsibility for his offending conduct has hampered their capacity to address his risk factors. Of course, for the purposes of this application, I do not expect the Applicant, who is pending a conviction appeal, to participate in a fashion inconsistent with his culpability position and fail to see its relevance to the variation requests before me.
[13] In September 2025, the Applicant presented these variation requests to his CSO supervisor. Complying with Probation and Parole supervisory polices around non-emergent international travel, his request to travel to India was denied. Further, his request to enhance his community service was initially denied in an effort to stay within the confines of the CSO as fashioned. However, this community service position was reconsidered as the supervisor noted that the Applicant's position that he was getting "depressed" when home alone. He was permitted to continue volunteer work at the Jet Aircraft Museum once confirmation was received of their approval. As a result, despite completing his community service obligations, the CSO supervisor, beyond the order's allowable discretion, approved the Applicant to attend one day per week for this community service as a further exception to his home confinement condition. The Applicant now seeks permission to add an additional day to his weekly community service at this museum.
Legal Background
[14] Under s. 742.4(5), the court has been granted a broad discretion to consider conditional sentence order variation requests as long as a "change in circumstances makes a change to the optional conditions desirable", as noted in s. 742.4(1). The common law interpreting this discretion acknowledges that a variation cannot change the sentence such that it offends the principles of sentencing from ss. 718 through 718.2 of the Criminal Code and must remain consistent with principles set out by the Supreme Court in R v Proulx. [^2]
[15] In this regard, to properly exercise my broad discretion, I must determine whether a change in circumstance has taken place and whether the requested variation is both desirable and respects the principles of sentencing in general. While not reassessing the sentence imposed, I should consider the circumstances of the offence and those of the offender.
[16] Despite counsel's suggested paucity of authority in this area, I have found and reviewed numerous judgments respecting conditional sentence order variation applications under ss. 742.4(2) and 742.4(5). I will reference some of those which I find relevant, and which best inform the exercise of my discretion on this application.
[17] I will start with the seminal decision of Proulx, wherein the Supreme Court considered the purpose and scope of a conditional sentence, taking care to distinguish it from probation and actual imprisonment. Lamer C.J.C. addressed this new intermediate sanction which was intended to address "a subclass of non-dangerous offenders who, prior to the introduction of this new regime, would have been sentenced to a term of incarceration of less than two years for offences with no minimum term of imprisonment." [^3] The objectives of these 1996 sentencing amendments were made clear:
Two of the main objectives underlying the reform of Part XXIII were to reduce the use of incarceration as a sanction and to give greater prominence to the principles of restorative justice in sentencing -- the objectives of rehabilitation, reparation to the victim and the community, and the promotion of a sense of responsibility in the offender.
The conditional sentence facilitates the achievement of both of Parliament's objectives. It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community, and the promotion of a sense of responsibility in ways that jail cannot. However, it is also a punitive sanction. Indeed, it is the punitive aspect of a conditional sentence that distinguishes it from probation. [^4]
[18] To contrast conditional sentences from the purely rehabilitative purposes behind a probation order, the Proulx court emphasized that this sentencing option could address both the punitive sentencing principles of denunciation, deterrence and separation alongside the restorative objectives of rehabilitation and reparation. To do so, "Parliament intended that conditional sentences include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty." [^5] Indeed, Lamer C.J.C. indicated that
...punitive conditions such as house arrest should be the norm not the exception. As the Minister of Justice said during the second reading of Bill C-41..., "[t]his sanction is obviously aimed at offenders who would otherwise be in jail but who could be in the community under tight controls. [^6]
[19] The Applicant requested that I consider the principles outlined in R v Kobsar, [^7] where the application involved a hearing under s. 742.4(3) where a supervisor's suggested variation was contested by the Crown. There, the applicant had served 8 of the 12 months of the house arrest portion of her CSO, on an otherwise two year less one day sentence for a theft over $5000 conviction. The supervisor applied to eliminate the remaining portion of her house arrest citing familial responsibilities to the applicant's ailing parents and a desire to spend more time with her young grandchildren. In dismissing the application, which was advanced simply for personal convenience, Justice Germain of the Alberta Court of Queen's Bench offered suggestions to CSO supervisors when considering s. 742.4(1) variation applications that are now oft cited and favourably considered by courts when addressing generalized s. 742.4 applications:
They should order and review a transcript of the sentence hearing to determine what information the sentencing judge had, and what the expressed reasons for the sentence were.
The power given to a supervisor under s. 742.4(1) should be used sparingly, given the great risk to the administration of justice inherent in this procedure. A change of circumstance is something that was not reasonably contemplated by the sentencing judge, not simply the behaviour (whether expected or not) of compliance with the order. In particular, the word "desirable" in the subsection should not be equated with "beneficial" to the accused.
Amendments proposed by supervisors should be technical as opposed to substantive. Some examples might be a change of address, a temporary absence to attend important family business, or the relaxation of territorial travel limits to comply with another term of the order, an extension of a territorial limit for employment, or the substitution of any named contacts such as caregivers or legal counsel to whom visits were prescribed as lawful excuses for absence from the home. A change to the length of the "house arrest" portion of the order is a substantive amendment for which the offender should be referred to the procedure set out in s. 742.4(5).
Subsection 742.4(1) should never be used when it is really the offender who wishes the change and the supervisor simply feels that the proposed change is not a bad idea. The proper approach in such situations is to suggest that the offender invoke s. 742.4(5). [^8]
These recommendations from Justice Germain were meant to principally address the concern that a s. 742.4(1) application that was not contested by the Crown or court within the 7-day window prescribed in s. 742.4(2) could take effect without judicial consideration. For application to his hearing, aspects of the second and third recommendations apply, with particular attention paid to the distinction between "technical" and "substantive" variation requests.
[20] In R v Jodoin, [^9] the court faced an application to vary a CSO prohibition permitting the applicant from being in the presence of children under the age of 16 years during his employment and requiring supervised access to his daughter. This application was made six weeks the applicant's sentencing respecting a sexual assault upon a 6-year-old victim. The application record contained no evidence speaking to any change in circumstance. Noting that the sentencing judge had given a great deal of consideration to the sentence, including the risk posed to the community by the applicant, and that the variation request did not address those community-based concerns, the application was dismissed.
[21] In R v Penner, [^10] the court considered an application to vary a CSO to convert the home confinement provisions that permitted exceptions for work, educational pursuits and religious observation to a curfew. The Applicant had been convicted of sexual assault but was industrious, working full-time as well as taking evening courses. He argued that the home confinement created a hardship for himself and his spouse. His application was dismissed. Justice Martin referenced the expectations noted in Proulx, particularly where Lamer C.J.C. noted that house arrest "means that the offender should be confirmed to his or her home except when working, attending school, or fulfilling other conditions of his or her sentence, e.g. community service, meeting with the supervisor, or participating in treatment programs." [^11] Addressing the need for a punitive aspect to conditional sentences, Martin J. further noted the Alberta Court of Appeal's comment in R v Ewanchuk: "The challenge is not one of imposing constraints that the public will perceive as house arrest, but rather of imposing constraints that will, in fact, be akin to house arrest." [^12] In the end, the court reminded himself that Proulx at least notionally classified a conditional sentence as a sentence of imprisonment, which by definition would require restrictions on liberty:
In my opinion, save in exceptional circumstances, of which this is not one, relaxation of a house arrest or curfew to a few hours each day would make a mockery of such sentences. A conditional sentence of imprisonment cannot have as one of its terms a curfew which amounts to a request not to stay out too late. [^13]
[22] In R v Wehbe, [^14] the court allowed an application to vary a requirement that he remain in the province and obey a curfew. He had four months remaining on an 18-month CSO. The Crown consented to the application. The CSO supervisor did not object to the curfew change but requested that travel outside the province be restricted to employment purposes, as had been accommodated already. Justice Hill was satisfied by the applicant's progress and endorsed the exercise of broad discretion by largely permitted the variations requested, eliminating the travel restriction and lessening the curfew timeframe for the remainder of the order. The court acknowledged that a conditional sentence was meant to be a sentence of imprisonment necessitating meaningful restrictions on liberty. However, Hill J. commented that "[g]raduated dispensation from onerous liberty restrictions, which were necessary at the outset of the term of punishment, may be justified where there are reasonable assurances the community will be protected and the good conduct of the offender secured." [^15]
[23] In R v Williams, [^16] a s. 742.4(1) application for variation to a home confinement condition was dismissed. The applicant had been convicted of a breach of trust fraud and sentenced to an 18 months CSO as part of her disposition. After 6 months of compliance, the supervisor supported the applicant's request that she now be permitted to be outside of her home confinement to permit personal shopping for necessities, personal grooming and a structured exercise program. The Crown contested this request noting that past compliance under a CSO was not to be a reward, but instead expected. The CSO terms were crafted with the offender and community's needs in mind, it was not expected to be varied to permit slow re-integration back into the community. The court concluded that allowing these exceptions to home confinement would eliminate the penal aspect necessary to address both general and specific deterrence. Unlike this application, "[i]ntense personal hardship not anticipated in the original sentence" would be an example of a variation of a CSO that could find favour. [^17]
[24] In R v Hopkins, [^18] a variation to permit international travel for a family engagement party was denied. The applicant was convicted of fraud over $5000 and sentenced to a CSO for two years less one day as part of his disposition. He requested permission to leave the province and vary his curfew for that purpose. He had been granted dispensation for previous employment related travel. Justice Shaughnessy noted that restrictions on the liberty of an individual serving a CSO are necessary, including restrictions on social events and noted circumstances that might otherwise be favourably considered:
I am not persuaded in these circumstances that there should be a variance of the conditional sentence order. My decision might be different if we were talking about true compassionate grounds requiring Mr. Hopkins' attendance outside the province. By that, I mean illness or death - serious illness or death of a family member and perhaps - and I say only perhaps - if it was related to some business purpose. [^19]
[25] In R v Laffin, [^20] the applicant sought variation of his home confinement conditions to a curfew. A first-time offender, the applicant had been convicted of attempted robbery. He was sentenced to a maximum term CSO and had served half of his sentence successfully, gaining employment in the service industry working his way up to a supervisory position and paying off his debts. His prior employment on a cruise ship and in the gaming industry was no longer viable given his criminal history. Citing the applicant's efforts to reintegrate into the community, which is in society's best interest, the court noted that he must nevertheless serve his full sentence. The requested amendment would considerably detract from the denunciatory and deterrent aspects of his sentence. Justice Campbell relaxed his home confinement conditions to permit limited weekly time out of his residence with family members, an identified rehabilitative purpose, without simply providing relief from the "discomforts of the conditional sentence". [^21]
[26] Finally, in R v Loewen-Kirouac, [^22] the applicant sought a variation to permit inter-provincial travel when his supervisor denied permission. He had been convicted of child abduction and was sentenced to a maximum term CSO. The court permitted interprovincial travel only for employment purposes to foster his ongoing employment as a restorative and rehabilitative measure but declined to permit outside the province vacations to visit with family. The family related travel was not necessary for "rehabilitative purposes and would undermine the punitive, denunciative, and deterrent purposes of the CSO." The home confinement conditions placed upon the applicant's liberty were noted to be an integral part of his sentence. Further, Justice Bergbusch found that permitting "travel for vacation would undermine the public's confidence in the administration of justice." [^23]
[27] I take from these authorities the necessity to maintain the integrity of the conditional sentence order by maintaining, as appropriate, their penal aspect so as to foster continuing public confidence that these sentences can and will have a denunciatory and deterrent effect. Where a change of circumstance highlights a variation with a restorative objective that does not diminish this balance, the court has a broad discretion to review.
Analysis
[28] The Applicant's requested variations are substantive in nature meriting this court's exclusive consideration. As a result, the CSO supervisor was correct to deny the requests, at least in part, and compel consideration by the court.
[29] First, I question whether any change in circumstance as mandated by s. 742.4(1) has been established. Informed by Justice Nicholson's commentary and intention to limit the Applicant's travel lifestyle, the Applicant's request for international travel is not a change in circumstance as contemplated by s. 742.4(1). Further, as noted in Kobsar, compliance with the CSO by completing the community service hours is, itself, arguably not a change of circumstance but, instead, an expected result. A request, however, to continue that community service founded upon the community service obligation may well be a change in circumstance.
[30] In support of these variation requests, the Applicant highlights his pro-social history and compliance history respecting this and previous court orders. I agree that the Applicant does not present as a flight risk, even despite his intention to retire in India, as these continuing proceedings present a vested interest in his return alongside his spouse's ongoing employment in this region.
[31] That the Applicant is a first-time offender is acknowledged. However, this status formed an important part of his sentencing disposition as a conditional sentence order would not have been granted to an individual who posed an ongoing risk to the community. As a result, this prosocial credit has been consumed.
[32] That the Applicant has been compliant with his conditional sentence order is also acknowledged. However, as Justice Germain noted in R v Kobsar, "this is merely suggestive that the sentence is having its desire effect. It should not become a justification for further watering down of the sentence." [^24] Of course, had the Applicant not been compliant, the s. 742.6 conditional sentence breach regime would be engaged, wherein the Applicant could reasonably expect that the order would be suspended resulting in his incarceration for the remaining period of time.
[33] On my review, the aggravating and mitigating circumstances that presented before Justice Nicholson not only informed his sentencing determination but inform this application's response. Denunciation and general deterrence were noted as primary sentencing goals for this "serious sexual assault", which was employment related involving a vulnerable subordinate victim. Citing Proulx, the court noted that "it is critical to understand that in our justice system a conditional sentence does represent the imposition of a sentence of imprisonment. ... a conditional sentence properly fashioned does have a punitive aspect that can meet the goals of denunciation and deterrence." [^25] That said, the principle of restraint was noted as playing a significant role in the sentencing. Justice Nicholson was "torn" by this decision between a traditional incarceral disposition and this conditional sentence alternative.
[34] Instructive to my consideration was Justice Nicholson's expressed objective in fashioning this CSO:
I also must recognize that a sentence that is perceived as too lenient, which conditional sentences often are, may be perceived as a slap on the wrist, or that Mr. Ray is receiving special treatment. I am satisfied, however, that on the whole, if conditions are significantly stringent, a conditional sentence can still meet the applicable sentencing principles at play in this case. [^26]
[35] Further, after imposing a jurisdictional restriction condition on the CSO, Justice Nicholson's specific intention respecting any travel allowance was made clear:
From the trial and the breaks that occurred during these lengthy proceedings, I am aware that you have, I believe, enjoyed travel. It is my intention to completely eliminate those travels for the duration of this sentence. Having said that, I have included the clause about written permission such that it is conceivable that acceptable circumstances could arise. [^27]
[36] I find that Justice Nicholson's intention to eliminate the applicant's international travel was entirely consistent with his expressed intention to prioritize the penal consequence of this conditional sentence. The CSO supervisor's refusal to permit this travel exception reflects the court's sentencing reasons.
[37] To reflect the primary sentencing objectives of denunciation and deterrence, the home confinement provisions were imposed and represented well over a half of the CSO duration. To date, the Applicant has served over half of his home confinement condition. To meet the objectives of a conditional sentence, and in particular this CSO, I find that he must fully complete this home confinement condition. It is not enough that the Applicant was found and continues to present as a minimal risk to the community. The restriction placed upon the Applicant's liberty was intended as part of the court's effort to make fit this form of sentencing disposition for a serious sexual assault offence.
[38] As an alternative to a 3 week leave from his home confinement condition, the Applicant suggested that I consider enhancing the period of home confinement for a corresponding amount. While the Crown unhelpfully characterized this request was a "vacation" in the midst of a house arrest term, I find that this alternative accommodation cannot satisfy the purpose behind the sentence imposed. The Applicant was not merely sentenced to home confinement, he was prohibited from travel which, I understand, has been a noteworthy aspect of his pre-sentence lifestyle. As noted, this was understood by the court, and factored in to account for an intended liberty restriction.
[39] While a travel exception was permitted at the discretion of the supervisor, a family wedding does not rise to a permissible exceptional circumstance. While I will not position the court respecting what such a circumstance may include, be it employment related, family emergency related, or otherwise, it certainly does not include non-immediate family celebration events. If a conditional sentence's penal consequence is to have any meaning, it must be restrictive. As noted in Loewen-Kirouac, the Applicant's pending wedding trip is not necessary for rehabilitative purposes and, if attendance was allowed, it would undermine the punitive, denunciative, and deterrent purposes of the CSO.
[40] While I acknowledge that even custodial dispositions, on occasion, allow for short term emergent circumstances, such as family funeral exceptions as noted by the Applicant, I am unaware of any circumstances which have permitted international travel and am certainly unaware of any precedent for custodial leaves for family wedding trips.
[41] This leads to the Applicant's request for leave to have an additional day, weekly, for extended community service. Of course, the Applicant's progress towards his community service order obligations is noteworthy. In relative short order, he completed his community service obligations. Reports from the president of the Jet Aircraft Museum are glowing. His contributions have benefited the organization, which has made efforts to mitigate any risks associated to his volunteer service. They welcome the Applicant's continued volunteer service. This endorsement informed his CSO supervisor's September 2025 permission to continue attending for this specific community service.
[42] At present, the Applicant has been permitted an exception to his home confinement conditions for one day per week at the museum going forward. Amending his variation application, he now requests a total of two days at the museum. Candidly, it is acknowledged that the purpose behind this request is self-serving. The Applicant enjoys this volunteer placement which meshes well wish his area of expertise. An additional day out of his home would mitigate his restlessness during this period of home confinement.
[43] These personal motivations aside, the sentencing court emphasized the Applicant's prosocial attributes which were intended to be fostered while benefiting the community in a safe manner. The Applicant's community service placement has achieved this goal, continues to achieve this goal, and by permitting its continuation I fail to see how the sentencing balance between restorative and penal objectives is displaced. This rehabilitative and restorative element of the CSO was intended as an exception to this sentence's liberty restriction and its success should continue to be encouraged, not dissuaded.
[44] As a result, I am satisfied that the Applicant can continue with his community service placement, as an exception to his home confinement condition for the duration of its remaining term.
Conclusion
[45] The Applicant's request to vary his CSO is partially granted. While his request for an international travel allowance to a family wedding is denied, he will be permitted to extend his community service hours to allow for two days a week of volunteer service, to be monitored, scheduled and prescribed by his CSO supervisor.
Justice M. B. Carnegie
Released: December 8, 2025
[^1]: Due to s.742.4(5) timing requirements and court scheduling inflexibility, I was assigned to hear this matter. Preferably, Nicholson J. would have been assigned if available.
[^2]: R v Proulx, 2000 SCC 5
[^3]: Ibid, at para 12
[^4]: Ibid, at paras 98-99
[^5]: Ibid, at para 127
[^6]: Ibid, at para 36
[^7]: R v Kobsar, 2004 ABQB 817
[^8]: Ibid, at para 26
[^9]: R v Jodoin, [2009] OJ No 3654
[^10]: R v Penner, 2002 ABQB 478
[^11]: Ibid, at para 11, citing Proulx, supra at para 103
[^12]: Ibid, at para 12, citing R v Ewanchuk, 2002 ABCA 95 at para 89
[^13]: Ibid, at para 15
[^14]: R v Wehbe, [2001] OJ No 3755
[^15]: Ibid, at para 14
[^16]: R v Williams, [2002] OJ No 4691
[^17]: Ibid, at para 18
[^18]: R v Hopkins, [2003] OJ No 5417
[^19]: Ibid, at para 9
[^20]: R v Laffin, 2007 NSPC 45
[^21]: Ibid, at para 47
[^22]: R v Loewen-Kirouac, 2025 SKKB 126
[^23]: Ibid, at para 40
[^24]: Kobsar, supra at para 37
[^25]: Transcript, Proceedings at Sentencing of Ajay Kumar Ray, April 10, 2025, before Nicholson J., p 31
[^26]: Ibid, at p 32
[^27]: Ibid, at p 35