Courts of Appeal: Conditional Sentence Orders For Child Porn and Firearms Cases


A Conditional Sentence Order (CSO) is a form of incarceration. The purpose of the conditional sentence is to reduce the reliance on incarceration as a sanction and increase restorative justice objectives. A Conditional Sentence Order is a jail sentence that the judge allows to be served in the community.


Two court of appeal decisions have recently upheld/issued conditional sentence orders. These decisions are useful benchmarks for future cases where criminal defendants may seek to obtain a CSO in appropriate circumstances.


In R v Friesen, 2022 ABCA 147, the Alberta Court of Appeal dealt with a case where the Crown appealed a conditional sentence order issued in a child pornography case. The accused entered a guilty plea to one count of child pornography contrary to s 163.1(4) of the Criminal Code. The accused had uploaded multiple videos (28) and pictures (100) of media that met the definition of child pornography. The police also discovered text messages where the accused discussed trading child pornography and a web history relating to child pornography. At the time of the offence the accused was 21 without a prior record. The accused engaged in extensive sex offender treatment where no further treatment was recommended. The accused was a public musician who suffered public humiliation as a result of wide publication of the case.


In R. v. Desmond-Robinson, 2022 ONCA 369, the Ontario Court of Appeal dealt with a case where a judge sentenced an accused who was convicted a firearms related offence and possession of cocaine and marijuana. The judge sentenced the accused to 18 months imprisonment and gave him credit for 9 months of being on strict bail conditions. The Court of Appeal found that in sentencing the accused to incarceration, the trial judge had made a mistake in ruling that a conditional sentence was beyond the range of potential sentences for the offences committed by the accused. The accused took very positive steps for rehabilitation while he was on bail. He was a young first offender with potential. He was also subject to systemic racisms which diminished his moral blameworthiness. He stayed out of trouble and had not been charged in the five years since he was charged.


The above cases demonstrate that the Courts consider positive rehabilitative steps leading up to sentencing as important in determining a fit sentence.

In response to the Supreme Court of Canada decisions that s. 33.1 Criminal Code violates the Charter of Rights and Freedoms and is of no force or effect, the federal government enacted new law for ext

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