The Future of Conditional Sentencing: Perspectives of Appellate Judges
Our initial research plan called for focus groups composed of trial judges as well as appellate judges. This proved impossible within the temporal constraints upon the project. This research adopted a qualitative approach to focus on understanding the reactions of appellate judges. This approach was considered more appropriate than a survey in light of the subject population, and the issue under scrutiny. A written survey generates information in response to specific questions, but does not permit researchers to probe responses. A request to conduct small focus groups was sent to Chief Justices in five provinces across Canada.  A positive response was received from four jurisdictions; the fifth Chief Justice indicated that it would not be possible to conduct the study at this time. The letter of information requested a focus group meeting with at least five members of the court. In one of the four jurisdictions it appeared that this criterion would not be met within the current time frame. Accordingly, we conducted discussions in the remaining three provinces (Manitoba, Ontario and Quebec).  Although we were not able to include any additional provinces, these three jurisdictions contain over half the general population. In total, 18 court of appeal judges participated, with at least five in each jurisdiction.
A brief background paper  was circulated and the meetings took place in February and March 2004. The background document was intended to provide a context for the meeting. Participants were asked to address a series of questions, after which a general discussion was held with regard to the issue of conditional sentencing. The first four questions came directly from the Alberta position paper noted above: 
Would it be a good idea to limit the use of conditional sentences for certain offences (e.g., to introduce a statutory exclusion for offences involving serious violence, sexual assault, driving offences involving death or serious bodily harm, offences involving organized crime or terrorist activity, thefts involving breach of trust)?
Instead of using a statutory bar for the offences listed in Question 1, would it be a better idea to create a presumption against the imposition of a conditional sentence unless rebutted by the offender?
Should the "two year less a day limit" set by s.742.1(a) be lowered to 12 or 18 months?
The Youth Criminal Justice Act  proclaimed into law in 2003 contains a sanction that is similar to the conditional sentence. The Deferred Custody and Supervision Order (DCSO) provides for supervision in the community rather than custody, but non-compliance can result in the offender being admitted to custody. However, this provision is not available for a serious violent offence and is limited to six months. Is it a problem that an adult has greater access to the option of serving a custodial term in the community (the conditional sentence) than a young offender (the deferred custody and supervision order)?
Do you think the current statutory framework contains any elements that restrict sentencing judges or otherwise prevent conditional sentences from achieving their proper objectives? What are they, and how could they be rectified?
- Do you think the current standard of review for sentencing established by the Supreme Court in R. v. Proulx and earlier judgments undermines the ability of Courts of Appeal to provide adequate review of sentencing at the trial court level?
At the conclusion, participants were asked whether they had other views on conditional sentences, especially any existing obstacles to the proper use of the sanction, and whether they could propose any changes to the conditional sentencing regime in Canada.
Our findings cannot be generalized to all appellate courts across Canada, but this was never our intention. Rather we hoped to include a diverse sample of individuals. Of course, since participation was voluntary, participants self-select themselves in a study of this nature. However, we do not see this as a limitation upon the findings; it simply indicates that our study included the appellate judges with an interest in the issue of conditional sentencing. This approach may have included individuals with the most experience hearing sentence appeals. As will be seen, with a couple of important exceptions to which we shall later draw attention, a considerable degree of consensus emerged around the issues discussed.
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