The Future of Conditional Sentencing: Perspectives of Appellate Judges

1. Introduction

Since its addition into the Canadian sentencing regime on September 3, 1996, the conditional sentence of imprisonment has attracted a considerable amount of research, commentary and controversy.[1] Most of the scholarship to date has focused upon the evolution of conditional sentencing as developed by the courts, as well as on sentencing patterns at the trial court level [2] including conditions [3] and breach rates.[4] In 2000, the Department of Justice Canada sponsored a one-day seminar on conditional sentencing [5] that contributed to the public debate regarding conditional sentencing.

In 2000, the case of R. v. Proulx [6] required the Supreme Court of Canada to address many of the conceptual and methodological issues created by the enigmatic statutory framework.[7] Some might question whether the Supreme Court should play such a substantial role in sentencing reform. [8] Still, this benchmark decision has highlighted the importance of judicial attitudes to the development of this new sanction that was a key element of the 1996 sentencing legislation. Currently, we know very little about these judicial attitudes. Only one research project has explored the perceptions and experiences of this most critical constituency. [9] The project's described findings from a quantitative survey of trial court judges across Canada.

However, that survey is of limited use today since it was conducted before Proulx, wherein the Supreme Court decision resolved a number of divisive questions about the methodology to impose a conditional sentence. The judgment also affirmed the position that no category of offence was presumptively precluded from eligibility for a conditional sentence (so long as the statutory criteria were met), and promoted the use of house arrest as an optional condition. Currently, our major source of insight into judicial reaction to the evolution of conditional sentencing comes from reported judgments that are constrained by the statutory framework and the kinds of questions that come forward.

While scholars have started to consider the roles, culture and practices of appellate courts, [10] sentencing researchers in Canada [11] have yet to survey or interview appellate judges. In fact, the scholarship on appellate courts and sentencing is very limited, and has relied mostly on an assessment of functions that can be discerned from an historical review of reported cases.[12] Certainly, there is a considerable volume of case commentary [13] that has accumulated since 1996 with the introduction of statutory sentencing principles and the creation of the conditional sentence. But judgments from the Courts of Appeal reveal only so much about the reactions of appeal court judges. They are constrained by the cultures specific to each jurisdiction, the questions and material placed before them, and the fact that only a very small proportion of all sentences imposed come before the appellate courts on appeal.

Sentence appeals have been available in Canada since 1921.[14] On a sentence appeal,[15] s. 687(1) requires the court to "consider the fitness of the sentence appealed against" and empowers the court to "vary the sentence within the limits prescribed by law for the offence". [16] Because sentence appeals to the Supreme Court are uncommon, the appellate courts represent the major source of guidance for trial judges. Other common law jurisdictions have created sources of guidance for judges. In England and Wales for example, guidance also comes from bodies such as the Sentencing Advisory Panel, and, more recently the Sentencing Guidelines Council, which was created by the Criminal Justice Act 2003.[17]

In the U.S., most states have Sentencing Guidelines Commissions [18] that devise (and revise) numerical sentencing guidelines. At the federal level, the U.S. Sentencing Guidelines Commission administers guidelines for sentences imposed in federal courts. While Canada had a Sentencing Commission from 1984 to 1987, its mandate ended with the publication of its report and no permanent replacement has been established. Accordingly, there is no non-judicial body with a sentencing mandate in Canada. Supervisory guidance must come from the Courts of Appeal. This means that appellate review plays a more important role in Canada than in most other common law countries.

However, providing substantive sentencing guidance is not the only role that appellate courts play. In Final Appeal,[19] a broad-based study of appellate decision-making, [20] Greene et al. noted the different approaches of Canadian appellate courts to sentence appeals, especially with respect to willingness to intervene. [21] In addition to these traditional practices, the authors observed that Parliament and the constitution determine the jurisdiction of appellate courts, and the parties determine which cases are heard and what issues are litigated. This, however, does not suggest a simplistic notion of passivity: "By their very decisions and practices, appellate judges signal to litigants a willingness or unwillingness to respond to certain types of claims. Thus, while the flow of incoming cases confines the discretion of judges, the discretion that judges exercise within those confines can expand or contract the flow of future cases". [22] Thus, appellate judges not only make substantive case-by-case decisions and provide general sentencing guidance, they also exercise a subtle influence on the size and nature of their dockets.

No study to date has explored the experiences and attitudes of appellate judges, with respect to conditional sentencing or any other sentencing issue, although Courts of Appeal play a critical role in the evolution of any sanction. The present study was designed to fill this void in the area of conditional sentencing. Although appellate judges have not participated in research projects of this nature in Canada, it is worth noting that in other jurisdictions this is far from a rare occurrence. In England and Wales, senior members of the judiciary are often consulted about policy developments. For example, a number of members of the judiciary were consulted during the course of the sentencing policy review conducted by the Home Office in 2001. [23]

1.1 Conditional Sentencing at the Crossroads

1.1.1 Origin and Definition of Conditional Sentence of Imprisonment

The conditional sentence of imprisonment is a term of imprisonment that the offender serves in the community. This community-based form of imprisonment was created by Parliament to reduce the number of admissions to prison without endangering the safety of the community. A number of statutory pre-requisites must be met before a court may impose a term of conditional imprisonment. The conditional sentence provisions in the Criminal Code [24] have been amended twice since their creation in 1996. The first amendment (in 1997) appeared to introduce a fourth statutory pre-requisite requiring conformity with the purpose and principles of sentencing, as outlined in sections 718-718.2 of the Criminal Code. The 1999 amendments dealt primarily with the breach mechanism and other procedural matters.

According to section 742.1:

Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

  1. imposes a sentence of imprisonment of less than two years, and
  2. is satisfied that serving 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,

the court may, for the purposes of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.

All offenders serving conditional sentences of imprisonment have to abide by a set of statutory conditions. In addition, courts may craft specific conditions to respond to the needs of individual offenders. In the event that a breach of conditions is alleged, a breach hearing will be expeditiously conducted. If the court finds that the offender breached a condition of the order without reasonable excuse, it has a number of options to exercise. The court may simply admonish the offender and let the sentence continue in the community; the court may amend the conditions of the order, or the court may cancel the conditional sentence order and commit the offender to custody for some portion of, or the remaining time on the order. [25]

1.1.2 Use of Conditional Sentence

Although over 100,000 conditional sentences have been imposed since 1996, the sanction continues to attract some criticism, especially when it is applied to crimes involving death, bodily harm and violations of sexual integrity. Another controversial category is drug trafficking. On empirical examination, however, offences such as manslaughter, sexual assault, assault causing bodily harm or aggravated assault account for a very small percentage of all conditional sentences imposed across Canada. Nevertheless, some Victim Rights' Advocates and a number of provincial Attorneys General have called for Parliament to introduce restrictions that would limit the application of the sanction to less serious cases, or to cases that do not involve the infliction or threat of bodily harm.

1.1.3 Proposed Changes to the Conditional Sentencing Regime

In 2003, a group of five provincial Attorneys General submitted a position paper to the Standing Committee on Justice and Human Rights, in which they advocated limiting the ambit of the conditional sentence. [26] The Alberta initiative included offences involving serious violence, sexual offences and driving offences causing death or bodily harm. It does not include drug trafficking but extends to "offences involving organized crime or terrorist activity and theft involving a breach of trust". In 2003 the Standing Committee announced a review of the operation of the conditional sentencing regime. However, the Committee has been busy with other business and its consideration of the conditional sentencing regime has been suspended for the present.

1.1.4 Need for research into Judicial Perceptions of Conditional Sentencing

There is a particular value in exploring appellate judges' views with respect to conditional sentencing because the ambit of the sanction is potentially broad. Since Proulx, it has been clear that no offences are categorically excluded from consideration except those carrying a minimum sentence of imprisonment. Assuming the other statutory criteria have been met, only cases that warrant penitentiary terms are excluded, but these represent a very small percentage of all admissions to custody: in 2001/02, less than 4% of all admissions were for terms of two years or longer. [27] Judges have a great deal of discretion to exercise with respect to this disposition. Appellate guidance therefore plays the critical role of determining entry thresholds for the sanction by establishing the factors that may preclude its use.

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