The Future of Conditional Sentencing: Perspectives of Appellate Judges

3. Findings

3. Findings

We shall summarize the discussions in the order of the questions posed.

3.1 Statutorily Excluded Offences

(1) 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)?

The answers to this question were virtually unanimous. Almost all participants replied that a schedule of statutory exclusions would not improve the conditional sentencing regime. One participant described this proposal as "a solution to a problem that isn't there". Several judges noted that trial courts need as much discretion as they have at present, and that this latitude to select a fit disposition should not be circumscribed by Parliament in this fashion. One participant noted that there were personal injury offences committed in "very sympathetic" circumstances - for example, where self-defence had been raised unsuccessfully at trial. Generally, the view expressed was that it would be wrong to deny judges the discretion to impose a conditional sentence in these unusual cases. Other comments included the following: [1]

  • A statutory exclusion is inconsistent with the philosophy and rationale behind conditional sentences;

  • A schedule of excluded offences would reflect the position that a conditional sentence is always more lenient than institutional imprisonment, and this is untrue; [2]

  • A schedule of offences would emasculate the statutory regime as it now stands (by introducing a degree of rigidity which would change the nature of the sanction);

  • A schedule would convey a message of non-confidence in the judiciary; [3]

  • While there may be a debate about conditional sentences generally, if you are going to have them, then don't exclude such a wide range of offences as those identified in the background document and

  • If an offence is so egregious by nature then Parliament can impose a minimum sentence of custody, as it has done for other offences.

3.2 Statutory Presumptions

(2) 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?

This proposal generated a more diverse debate but there was still a consensus that it would probably not have a salutary effect on the conditional sentencing regime. It was perceived as "neither fish nor fowl", a half measure rather than a potentially useful reform. Participants in two jurisdictions did suggest that if presumptions existed, this would "make defence counsel work harder" in terms of their sentencing submissions. [4] Although the view was expressed that this proposal could make sentencing somewhat easier for trial judges, most judges disagreed. They were of the view that trial courts were able to distinguish the appropriate cases for a conditional sentence without the additional direction of statutory presumptions. Several participants noted that in a sense, presumptions exist in the case law already; certain offences for which denunciation is most important carry a "judge-made" presumption in favour of custody.[5]

Participants also acknowledged the problem of the unrepresented accused person who may be disadvantaged if convicted of an offence carrying a presumption of custody rather than a conditional sentence. A number of participants were of the view that statutory presumptions would make the process of sentencing an offender far more complicated, with no actual benefit. Finally, the view was also expressed that the experience in the U.S. suggests that guidelines of this kind undermine the sentencing process by restricting the ability of the trial court judge to impose an appropriate sanction. [6] Other comments included the following:

  • Presumptions would change things for the worse, by making the sentencing hearing longer and more complicated; 
  • Politically, it would do more harm than good; 
  • Let the jurisprudence define criteria for which offences should have a presumption, and this should be sufficient guidance for judges; and, 
  • "It's just another example of how politicians mistrust judges".

3.2.1 An Alternate Proposal Involving Statutory Presumptions

During one session, a modified version of the presumptive reform proposal emerged. One judge suggested an arrangement whereby the first stage of analysis would be to determine the co-relative custodial term. There then would be a presumption in favour of a conditional sentence for terms of custody within the 12-month range, but for the more serious cases which would result in terms of imprisonment in excess of 12 months but still within the two years less one day range, there would be a presumption of custody rather than the community.

Terms of custody under 12 months:
Presumption in favour of a conditional sentence
Terms of custody 12 months< 2 years:
Presumption in favour of institutional imprisonment

While this approach is novel, it would add another stage to the methodology for imposing a conditional sentence [7] by requiring the trial judge, after rejecting both non-custodial options and a penitentiary term, to then stipulate at least whether the co-relative custodial term is within or without the presumptive range.

3.3 Lowering the Statutory Limit

(3) Should the "two year less a day limit" set by s.742.1(a) be lowered to 12 or 18 months?

There was less agreement with respect to this proposal, but as with the others, the majority opinion appeared to be that the limit was not too high. Several participants drew attention to the historical significance of the two-year threshold for the imposition of a penitentiary term. They noted that judges, and indeed the criminal justice culture, is most familiar with the two year threshold; a new ceiling of 12 or 18 months would seem unnatural, and would not carry a precise, or at least accepted, meaning. 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. [8]

Comments included the following:

  • There's always been a difference between two years and two years less a day.
  • It would be a revolution (in the negative sense).
  • It may be arbitrary but we've always known what a penitentiary term is.

The participants who believed that the limit was set too high (and therefore should be lowered) argued that some offences within the two-year range were too serious to justify a community sanction. In addition, it was noted that if the limit remains at two years less one day, cases that might attract a penitentiary term of three or even four years imprisonment could be eligible for a conditional sentence if the offender had spent a year in pre-trial custody which was subsequently credited on the basis of "two for one". Participants who supported this proposal also observed that trial judges seemed to believe that lengthy conditional sentences (near the limit) were not a good idea. They felt that this was implicit in the fact that long conditional sentences included a curfew in the first few months, but this condition was often relaxed after a year.

3.4 The Conditional Sentence of Imprisonment and the Deferred Custody and Supervision Order

(4) 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)?

Although there has been very little experience to date with the Youth Criminal Justice Act and particularly the DCSO, it could be argued that there should be a consistent relationship between the DCSO and the conditional sentence of imprisonment for adults. That is, the differences between them create an inappropriate anomaly. Under the YCJA, young offenders are denied a DCSO for offences for which an adult is eligible for a conditional sentence (assuming the other statutory criteria have been satisfied). Similarly, a young offender facing a term of custody of nine months may not receive a DCSO, while nine months is well within the range of a conditional sentence in adult court. On the other hand, a competing perspective holds that the separate sentencing regime, with different objectives and principles [9] , means that there is no substantive reason why the sanctions available in youth court should correspond exactly to those available to judges in adult court.

This question did not generate a lot of interest amongst participants. For this reason, it was not raised in the third jurisdiction. The lack of interest is perhaps due to the newness of the Youth Criminal Justice Act. In any event, there was a consensus that no particular relationship existed between sentencing in youth and adult courts. In addition, a number of specific points were noted:

  • the two sanctions (DCSO and Conditional Sentence of Imprisonment) carry different names, notwithstanding certain similarities. This suggests that Parliament envisaged a different range of application for the two dispositions. It makes no sense to allow one regime to influence the future of the other;
  • the DCSO is, by definition, a deferred custodial sanction; whereas the conditional sentence of imprisonment is a term of custody, but simply one that is served in the community rather than a correctional institution; and

  • comparing the two sanctions was, in light of the separate statutory principles, an exercise of comparing "apples and oranges".

3.5 Standard of Review

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? [10]

In the mid-1990s, the Supreme Court of Canada became interested in the standard of appellate review of sentences. It is now clear that there are two avenues of review. The first is unfitness: if a sentence is demonstrably unfit, this constitutes grounds for intervention by an appellate court. The second avenue is error in principle. These grounds were articulated clearly in R. v. M.(C.A.)[11] wherein the Court noted that: "Put simply, absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit". [12] In other words, an appellate court may not intervene in a sentence unless one of these grounds exists. As the Supreme Court noted in Proulx, "Sentencing judges have a wide discretion in the choice of the appropriate sentence. They are entitled to a considerable deference from appellate courts". [13] Some commentators have suggested that this relatively high standard of review may prevent appellate courts from providing as much guidance as might otherwise be possible. For this reason we explored this question in this study.

There was less agreement 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". Another referred to sentencing judges and commented that: "we have always had a lot of respect for their experience and judgment".

On the other hand, one participant expressed the view that the high standard of review made it somewhat harder for appellate courts to ensure that the codified principle of parity in sentencing was respected. The reason for this is that the high standard of review (the sentence must be "demonstrably" or "unreasonably" unfit) permits a wide range of disparity. No participants saw any need for Parliament to respond to the standard of review established by the Supreme Court. However, some participants did comment on the fact that the Criminal Code provision directed appellate courts to a fitness review, [14] not an error of law review.

With respect to the guidance issue, most judges were confident that the current standard of review did not impair their ability to offer guidance to sentencing judges on the general issue of thresholds for conditional sentences. This is important given that Proulx opened up arguments for all kinds of offences to be considered for a conditional sentence. However, very few examples of guidance were given . [15] This may be a function of a number of factors including the relatively brief period since Proulx. On the other hand, we may be seeing a cautious approach that is respectful of the trial judge's role and requires waiting for appropriate benchmark cases.

Two other comments are worthy of note with respect to this issue. First, some participants in one jurisdiction offered the impressionistic view that the standard of review had resulted in fewer sentence appeals during recent years. Secondly, in another jurisdiction some judges felt that the "error of law"/ "demonstrably unfit" standard made it harder to persuade other panel members to allow appeals based on offender or offence characteristics.

3.6 Other Issues Emerging from the Discussions

Breach Rates

A number of individuals expressed concern about the absence of reliable data with respect to the breach rates of conditional sentence orders. The limited breach data [16] were described by one individual as "not real", in the sense that it was simply the proportion of orders that had resulted in an official breach hearing. The phrase "sentencing in the dark" was used in one jurisdiction to describe the absence of reliable statistical information about conditional sentencing outcomes. A participant from another court noted the need to have a full time sentencing commission that could collect and distribute such data. [17]

Supervision Resources

Considerable concern was also expressed about the existence of adequate supervision. A number of participants felt that supervision was inadequate, especially with respect to house arrest, but a few judges questioned whether this issue had been over-stated. [18] Some judges felt that the federal government had "created this thing [the Conditional Sentence] and then walked away from it". Everyone agreed that the absence of adequate support resources, or a perception of inadequate resources will undermine any sanction. There was a general consensus that reform should focus on improving the administration / supervision aspects rather than on statutory reforms.

Public opinion

The public's misconception of conditional sentencing (and the courts) was identified as a challenge in several sessions. A number of participants remarked that the new sanction had not been "properly sold" by Ottawa prior to its introduction. It was suggested that the public was opposed to the imposition of a conditional sentence in the more serious cases of violence, and that this created pressure upon the courts, which were, to some degree, sensitive to community views. Participants noted that sentences imposed need to generate public respect, even if they do not attract wholesale agreement. Uncertainty about the role of conditional sentences affects public opinion. Many members of the public, it was suggested, fail to see the important differences between a conditional sentence of imprisonment and a term of probation. [19] Some participants objected to the name "conditional sentence of imprisonment" which suggests a term of custody, when in fact a conditional sentence is unlike imprisonment in a number of important respects. For example, even the most rigorous conditional sentence order allows the offender more freedom than would be the case if he or she were confined in a correctional facility.

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