Following separate sexual assault convictions and before sentencing, the applicants brought joined constitutional applications challenging the prohibition on conditional sentence orders for indictable sexual assault under s. 742.1(f)(iii) of the Criminal Code.
The court held that the provision was overbroad under s. 7 of the Charter because sexual assault encompasses a broad spectrum of conduct, including cases not so serious as to require imprisonment to maintain the integrity of the justice system.
Relying on the reasoning in Sharma and a prior superior court decision extending that analysis to sexual assault, the court rejected the Crown's mootness argument and granted both applications.
The court found no cogent reason, under principles of judicial comity, to depart from the earlier decision.
