The Future of Conditional Sentencing: Perspectives of Appellate Judges


Acknowledgements

We would like to express our great appreciation to the appellate judges who took the time from their onerous duties to participate in this study, and to the Chief Justices for permitting us to conduct this research. We are most grateful to Mr. Damir Kukec and Mr. David Daubney from the Department of Justice Canada for their help in bringing this research project to fruition, as well as for providing feedback on a previous draft. We also thank Professor Patrick Healy for facilitating the seminar in Montreal.

Highlights

  • This report describes findings from a series of focus groups held with appellate judges in three Canadian jurisdictions in early 2004.
  • The focus of the discussions was upon conditional sentencing, and in particular the future of this sanction.
  • Judges were asked to consider a number of potential statutory amendments, all of which would have the effect of circumscribing the ambit of the sanction.
  • In general, there was considerable opposition to the proposed changes. For example, judges were opposed to the creation of statutorily excluded offences.
  • Most judges opposed amending the Criminal Code provisions to restrict trial judges from imposing a conditional sentence in certain cases. Participants were of the view that such restrictions would unduly restrict the discretion of sentencing judges.
  • A number of judges did however express reservations about the use of the conditional sentence for cases serious enough to warrant a term of custody up to two years less one day.
  • As well, many participants expressed concern about the supervision of offenders serving conditional sentences in the community. A number of participants expressed a desire for better information in the area.
  • When asked about the ability of the courts of appeal to guide trial judges, most participants were of the view that guidance was being provided, even though the "standard of review" established by the Supreme Court was high.
  • The report concludes with a number of proposals for future research in the area of conditional sentencing. At present, little is known about the effectiveness of the sanction, or many other issues of interest to judges and other criminal justice professionals. The authors believe that current databases at the provincial level contain sufficient information to answer some important questions about the conditional sentencing regime in Canada.

Executive Summary

Purpose of Study

  • Seven years after the creation of the conditional sentence of imprisonment, the sanction remains controversial. Criticism has been directed at courts that have imposed conditional sentences in cases involving serious personal injury offences. This had led to calls to amend the conditional sentence provisions in the Criminal Code, with a view to circumscribing the ambit of the sanction.
  • Since its inception in 1996, the conditional sentence of imprisonment has attracted a considerable amount of commentary and research, as well as appellate judgments. Although a considerable number of research studies have been conducted on the issue, no study has explored the perceptions of the appellate courts.
  • Courts of Appeal play a critical role in the evolution of any sanction. This is particularly true in Canada, where the appellate courts represent the principal source of guidance for trial judges. In other common law jurisdictions such as England and Wales, guidance also comes from bodies such as the Sentencing Advisory Panel, and, more recently the Sentencing Guidelines Council.

Methodology

This report describes the findings from a series of focus groups with Court of Appeal judges in three jurisdictions (Quebec, Manitoba and Ontario). We included at least five appellate judges from each jurisdiction. Participants were asked to respond to a series of questions about conditional sentencing, as well as to offer any suggestions to improve the current regime. In total, 18 Court of Appeal judges participated in the study.

Summary of Principal Findings

  • Almost all judges were opposed to the creation of a list of offences (statutory exclusions) for which a conditional sentence would not be available. They saw this proposal as representing an unwarranted intrusion by Parliament into the exercise of judicial discretion.
  • Most participants were also opposed to the creation of statutory presumptions against the imposition of a conditional sentence of imprisonment. An alternate proposal was made to create a statutory presumption in favour of a sentence of institutional imprisonment for terms of imprisonment in excess of 12 months.
  • There was less consensus regarding a proposal to lower the current ceiling of two years less one day, with some judges expressing support for such a proposal. However, as with the other proposals, the majority opinion appeared to be that the limit was not too high. One participant suggested that the limit should be retained at its current level, unless there was research to demonstrate that conditional sentences become less effective after a given period, such as 12 months.
  • The Youth Criminal Justice Act includes a sanction similar to the conditional sentence of imprisonment. The Deferred Custody and Supervision Order (DCSO) is a sentence in which a young offender spends time in the community under supervision. It has a maximum of six months and may not be imposed for a serious violent offence. When asked whether this created an anomaly (in that youth courts have access only to the more restrictive sanction), the consensus from participants was that youth court sentencing was a different matter. They saw no necessity to create the same sanction at both the adult and youth court levels; they perceived the YCJA as having little or no bearing on the sentencing of adult offenders.
  • With respect to the standard of review, there was less consensus in response to this question than the others posed during the sessions, but it did generate an interesting discussion. Most judges agreed that although appellate discretion had been constrained by the high standard of review, appellate courts were still able to intervene when necessary. One participant summarized this perspective by saying that "Principled interference is still possible and present".
  • There was a general consensus that reform should focus on improving the administration and supervision aspects rather than on statutory reforms, such as the creation of statutory exclusions.

Future Research Suggestions

  • The report concludes with a number of suggestions for future research in the area of conditional sentencing. At the very least judges should have better information about the following matters:
    • the level of supervision of conditional sentence orders;
    • the "failure" or "success" rate of conditional sentence orders;
    • the kinds of non-statutory conditions that are imposed;
    • the conditions most likely to be associated with a breach hearing;
    • the pattern of judicial response to substantiated allegations of breaches; and
    • the recidivism rate of offenders who have served conditional sentence orders (compared to offenders sentenced to serve terms of custody in a provincial correctional facility).

We believe that many of these issues can be answered with data currently available in the provincial correctional databases; they simply have not been extracted to date. For this reason, we strongly recommend that the Department of Justice undertake, in conjunction with provincial correctional authorities and the Canadian Centre for Justice Statistics, a research project to answer some of the most basic questions about conditional sentencing that have remained largely unanswered since 1996. Such a project would be of benefit to all parties with an interest in the sentencing process.

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