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Research – Conditional Sentences

Introduction

When court is adjourned and a person is convicted of a crime, we tend to assume that they are headed straight to jail. In fact, there is an array of alternatives to incarceration within the criminal justice system. One of the more controversial debates in Canadian legal history is that of conditional sentencing, whereby certain offenders can, under the supervision of the courts, serve their sentence in the community. This was originally introduced as a means of preventing overpopulation in prisons across Canada by reducing the number of ‘petty’ criminals taking up prison cells. Conditional sentencing represents a middle ground between probation and imprisonment. Ideally, the only criminals allowed back into the community should be non-violent offenders. However, this is not always the case. If an individual serving a conditional sentence reoffends, that person is sent back to court and is likely to serve the rest of his or her term in prison.

Distinguishing between violent and nonviolent crimes might seem to be relatively black and white, but during sentencing can become a grey area because much of it is left up to the judge’s discretion. Members of the public often demand stiff penalties for those convicted of violent offences, understandably so. Most citizens would agree that offenders convicted of murder, sexual assault and other violent acts should face a substantial period of imprisonment in a federal institution. A period of incarceration for violent offenders should reflect society’s condemnation of violent crime and also deter others from committing similar offences. Ideally, the punishment should fit the crime.

It is important to remember that the goal of incarceration is not simply to lock criminals in a cell and throw away the key, but rather to rehabilitate the individual convict, deter the offender and the general public from committing similar crimes, incapacitate those at risk of reoffending, and consider the needs of the victims of the crime. There are cases where a conditional sentence is appropriate, but when dealing with violent offenders the courts generally side on the air of caution.

The Law

Conditional sentencing was introduced as part of Bill C-41, a lengthy bill that contained numerous Criminal Code amendments concerning sentencing. The bill was enacted and became law on September 3, 1996, and allows judges to hand down community sentences to some offenders, rather than requiring a period of incarceration.  More amendments were made in 2012 with the introduction of the Safe Streets and Communities Act (Bill C-10). Currently, section 742 of the Criminal Code states the following:

742.1: If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than 2 years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

  • a) The court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
  • b) The offence is not an offence punishable by a minimum term of imprisonment.
  • c) The offence is not an offence, prosecuted by way of indictment, for which  the maximum term of imprisonment is 14 years or life;
  • d) The offence is not a terrorism offence or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more;
  • e) The offence is not an offence prosecuted by way of indictment , for which a maximum term of imprisonment is 10 years, that (i) resulted in bodily harm (ii) involved the import, export, trafficking or production of drugs, or (iii) involved the use of a weapon.

Section 742.1 (f) states that a person who commits offences including prison breach, criminal harassment, sexual assault, kidnapping, trafficking in persons for material benefit, abduction of a person under 14 years old, motor vehicle theft, theft over $5000, breaking and entering, being unlawfully in a dwelling house, and arson for fraudulent purposes, when prosecuted by way of indictment, are also not eligible to receive a conditional sentence.

If a judge is satisfied that an offender meets all these criteria, that judge can then order that the offender abide by a number of compulsory conditions while serving a conditional sentence.

742.3 (1) The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:

  1. keep the peace and be of good behaviour;
  2. appear before the court when required to do so by the court;
  3. report to a supervisor
    1. within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
    2. thereafter, when required by the supervisor and in the manner directed by the supervisor;
  4. remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
  5. notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

In addition to the compulsory conditions outlined above, the judge can also order that the offender abide by certain optional conditions. These may include that the offender:

742.3 (2)

  1. abstain from
    1. the consumption of alcohol or other intoxicating substances, or
    2. the consumption of drugs except in accordance with a medical prescription;
  2. abstain from owning, possessing or carrying a weapon;
  3. provide for the support or care of dependants;
  4. perform up to 240 hours of community service over a period not exceeding eighteen months;
  5. attend a treatment program approved by the province, and
  6. comply with such other reasonable conditions as the court considers desirable, subject to any regulations made under subsections 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

A document with all of the conditions assigned must be given to the offender; the document also includes the procedures used to change conditions and the consequences of breaching any of these terms.

Should the offender breach any of the conditions imposed by the court, a number of options are available.

The court does not take action simply on an allegation of a breach of sentence conditions, the allegation must be accompanied by a written report from the supervisor and contain witness signatures if possible. The convict is also given a copy of this document, and can attempt to prove that the breach was justifiable. If it is deemed inexcusable the court has several options.

742.6 (9) Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on the offender, breached a condition of the conditional sentence order, the court may

  1. take no action;
  2. change the optional conditions;
  3. suspend the conditional sentence order and direct
    1. that the offender serve in custody a portion of the unexpired sentence, and
    2. that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or
  4. terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

Rationale Behind Conditional Sentencing

The main goal of conditional sentencing is to lessen the court’s reliance on imprisonment when sentencing offenders. Proponents argue that, since many prisons do not offer treatment programs for inmates serving short-term sentences, serving time in the community would increase an offender’s chance at rehabilitation. They further argue that conditional sentences encourage offenders to take responsibility for their actions through community service. Moreover, it costs almost $50 000/year less to hold someone on a conditional sentence compared to incarceration in a provincial penitentiary.

Incarceration is hardly the best method of rehabilitation. Isolated for years and taken away from the general population, convicts can become incapable of functioning normally in society. Allowing offenders to serve their sentence in the community increases the likelihood that they can be successfully reintegrated into the general public. That said, rehabilitation is not the only principle of sentencing, the protection of society is another vital component. Thus, while allowing a violent offender back into society may increase his or her chances of rehabilitation, it must be balanced against the potential for increased risk to the public.

While the overall concept of conditional sentencing is progressive, there are potential issues of judges abusing this option. Police and victims' organizations relayed their concerns about the proposed legislation before the Standing Committee on Justice and Legal Affairs. Victims of Violence testified that any form of alternative sentencing, including conditional sentences, should be strictly limited to non-violent offenders. Representatives of the victims' group CAVEAT (Canadians Against Violence Everywhere Advocating its Termination) echoed this concern by warning that, in all likelihood, the section as drafted could be extended towards offenders convicted of violent offences.

“Before Bill C-41 became law CAVEAT expressed concern with the open-ended wording of the legislation that does not differentiate between violent and non-violent offences…[which] does not rule out the use of conditional sentencing in [crimes of violence]” (CAVEAT “Stopwatch”, Vol.5, No.1, February 1997). The issue is that the criminal code does not explicitly state who should and who should not be considered for conditional sentencing. If a vandal reoffends while on a conditional sentence, it is probably not at the expense of a victim. However, if a rapist reoffends it will victimize another individual. The risks posed by violent offenders are much greater when placed against the potential advantages.

Examples of Conditional Sentences in Cases of Violent Crime

There have been cases where an offender convicted of a violent offence has nonetheless been given a conditional sentence. In these instances the courts deemed conditional sentences to be appropriate, though that decision may have weighed against the best interest of the community. In some cases, these decisions were appealed by the crown and overturned. However, many cases of conditional sentencing for violent crimes have gone unattested.

Manitoba: Jeromie Keith Proulx was convicted of driving recklessly while intoxicated resulting in the serious injury of another driver and the death of an individual in his car. This was a landmark case in terms of conditional sentencing because it clarified when is appropriate to allow a conditional sentence to be assigned to an offender. The courts explained that a conditional sentence differs from a probation sentence because the main focus is punitive, while probation’s main focus is rehabilitative. “Safety of the community” was addressed in this decision, which stated that the judge must consider the risk of reoffence and the potential harm that would inflict. The weight of the offence should direct the weight of the sentence. The court’s decision in this case highly recommended the use of conditional sentencing wherever applicable.

British Columbia: Bhalru and Khosa, two men involved in a street race, were convicted of criminal negligence causing death after their race resulted in the death of a pedestrian. They were sentenced to two years less a day on a conditional sentence and three years probation. The crown appealed this decision, arguing that it was much too lenient. The appeal courts found that it was a fit punishment because conditional sentences are successful deterrents for serious driving offences. As there were no “aggravating factors” in this case, there was no reason to assign jail time to either of the individuals.

R. v. F. was an extremely important case concerning the detention of violent offenders. The accused was found guilty of sexual assault against two 13 year old girls. He coached the two girls over time into becoming his sexual property, which eventually led to sexual intercourse with one of the girls. The trial judge assigned a conditional sentence of 12 months to him, which the Crown successfully appealed. The accused was subsequently given one year in custody, having already served a year. The reasons given were that a conditional sentence should not be applied in cases involving the sexual assault of a minor. As the case involved abuse of a position of trust and increasing levels of obscenity over time, the court of appeal found that a severe sentence should be applied.

Ontario: Another case that set a precedent limiting the use of conditional sentencing was R. v. Fice. The accused attacked her mother with a baseball bat and attempted to strangle her with a phone cord. She was given a conditional sentence which was strongly protested by the community and appealed by the Crown. She pled guilty to a serious violent offence and should not, the appeal courts later ruled, have been let back into the community right away. The first trial judge originally took into account the time the accused had served before her pre trial, one year, and decided that since the remaining sentence time was less than a year it was fair to assign a conditional sentence. The Supreme Court of Canada disagreed with this decision and clearly stated that if the original sentence is two years or over, including time already served, then conditional sentences are not to be applied. This Supreme Court ruling did much to clarify the somewhat open-ended language used in section 242.

How Successful are Conditional Sentences?

Conditional sentencing was originally intended to reduce the number of offenders incarcerated, and in that goal was successful. The number of individuals placed in prison each year has fallen 13% since conditional sentencing was brought forth. Approximately 55 000 offenders that would previously have been imprisoned have been admitted back into the community. The overall effects of this policy on society are not so easy to qualify.

A study was conducted concerning victims of crime and their general attitudes towards conditional sentencing. This study found that victims tend to hold the following beliefs:

  • Rehabilitation is more likely to occur in the community rather than in a prison.
  • Imprisonment is not necessarily the strongest deterrent. With the right terms applied, conditional sentencing can act as an adequate deterrent.
  • It is much more expensive to keep individuals in prison than to apply conditional sentences.
  • Except in cases of crimes of violence, the public generally support the concept of conditional sentencing
  • Quoting Bill C-9, “Widespread interest in restorative justice has sparked interest in community-based sanctions. Restorative justice initiatives seek to promote the interests of the victim at all stages of the criminal justice process, but particularly at the sentencing stage.” (MacKay, 2006) The victims interviewed supported this principle.
  • Conditional sentencing encourages the offender to seek employment and continue on as a contributing member of society.

Amendment to Conditional Sentencing Provisions

After several high-profile cases involving crimes of violence and harsh criticism voiced by victims' advocacy groups, the government was pressured into considering an amendment to the conditional sentencing provisions. In April 1997, after heavy questioning from Reform MP’s, Justice Minister Allan Rock asked the House of Commons to pass an amendment to the conditional sentencing provisions. Minister Rock stated that the proposed amendment should, “make clear that the courts must have regard to the traditional principles of sentencing, including deterrence, denunciation and protection of society when deciding on whether a conditional sentence should be given.”

On May 2, 1997, the Department of Justice and the Department of the Solicitor General of Canada announced that an amendment to the conditional sentencing provisions had come into force. section 742.1 (b) required judges, when considering whether a conditional sentence would endanger the safety of the community, to take into account the statement of purposes and principles of sentencing outlined in the Criminal Code. These state that:

718. The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

  1. to denounce unlawful conduct;
  2. to deter the offender and other persons from committing offences;
  3. to separate offenders from society, where necessary;
  4. to assist in rehabilitating offenders;
  5. to provide reparations for harm done to victims or to the community; and
  6. to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community.

One of the most significant amendments to section 742 concerning conditional sentencing is Bill C-9, which amended the Criminal Code. The bill declared that section 742 should be changed so that offenders convicted of serious crimes causing personal injury, terrorism, or a criminal organization offence with a minimum term of indictment (as opposed to over 2 years) and with a maximum penalty of 10 years, will not be considered for conditional sentencing. The bill was given Royal Assent on May 31 2007.  As mentioned previously, the introduction of the Safe Streets and Communities Act also brought about more amendments to conditional sentencing, and expanded and clarified the list of offences that were and were not eligible for this type of sentencing (See previous section titled “The Law” for this list of offences).

Conclusion

Since its introduction in 1996, conditional sentencing has received both praise for its goals and criticism for its shortfalls. The goals of conditional sentencing are certainly positive; by reducing the number of offenders in prisons it is economically sound and also gives those individuals a chance to be integrated back into the community. There are many potential drawbacks, however, to conditional sentencing. Despite recent amendments to section 742, which lessened the chances of a violent offender being let back into the community, there is still much to be done to define and regulate which offenders should and should not be granted a conditional sentence. The balance between cost, rehabilitation, and public safety is still being struck.

Sources

Basen, Ira. “Conditional Sentencing in Canada: A Closer Look at the Conservatives’ Proposed Changes.” CBC News Justice Reality Check. June 15, 2009.

Claridge, Thomas. “Court reaffirms conditional sentences – Appeal panel decision opens door to greater use of alternatives to prison”. Globe and Mail. April 12, 1997 p. A3.

“Conditional sentencing under fire in B.C.: ‘He just got a slap on the wrist,’ dead woman’s son says of man charged with murder”. Montreal Gazette. May 12, 1997 p. A11.

“Condition Sentences Fact Sheet”. Department of Justice. http://www.justice.gc.ca (Found on the World Wide Web)

Danese, Roseann and Bailey, Sue. “House arrest Backfires”. Montreal Gazette. April 24, 1997 p. A15.

Danese, Roseann. “House arrest imposed in sex case”. Windsor Star. April 29, 1997 p. A5.

Denley, Randall. “No jail, no justice for victims”. Ottawa Citizen. May 7, 1997 p. B4.

Department of Justice. “Criminal Code Amendments Come Into Force on May 2, 1997.” News Release. May 2, 1997.

Greenberg, Peter et al. “Conditional Sentencing in Canada: A Statistical Profile 1997-2001.” Statistics Canada, Canadian Centre for Justice Statistics. 2003.

Hall, Neal. “Sex offender’s conditional sentence condemned: Abbotsford man’s violent attack on woman demands that he be put behind bars, prosecutor tells appeal court”. Vancouver Sun. March 25, 1997 p. B5.

House of Commons Debates. Official Report (Hansard). April 10, 1997 p. 9548.

MacAfee, Michelle. “Conditional sentences raise doubts”. Calgary Herald. February 27, 1997 p. B8.

MacKay, Robin. “Bill C-9: An Act to Amend the Criminal Code.” Law and Government Division. 12 May 2006.

Mandel, Michelle. “A man’s home is…his prison”. Toronto Sun. October 20, 1996 p. 5.

Outhit, Jeff. “'Not a good start' for new bill”. Kingston Whig-Standard. September 24, 1996 p. 9.

R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61

R. v. Bhalru; R. v. Khosa [2003] BCCA 645.

R. v. F.(G.C.) (2004), 71 O.R. (3d) 771 (C.A.)

Roberts, David. “Manitoba to appeal ruling involving 13-year-old girl – Community sentencing stirs up controversy in sex case”. Globe and Mail. June 5, 1997 p. A4.

Tam, Pauline. “No jail for two who killed: Two offenders in high-profile cases get `house arrest'”. Ottawa Citizen. May 6, 1997.

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