The Future of Conditional Sentencing: Perspectives of Appellate Judges
The nature of the focus group method precludes us from making generalizations to all appellate judges in Canada. We are unable to determine the extent to which the findings reported here apply to other jurisdictions. For example, we did not visit the smallest provinces, where the experience with conditional sentencing may well be quite different. In addition, it would be useful to know whether the other provincial courts of appeal have the same reactions as the participants in our study. We would also encourage the Department of Justice to consider approaching some of the remaining provinces to see whether they would be willing to participate in focus groups on this important subject.
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. Our only insight into the attitudes and experiences of trial court judges with respect to conditional sentencing comes from the survey conducted in 1999. As noted, that research was conducted prior to the Supreme Court judgment in Proulx. Accordingly it is now out of date. For this reason, we feel it important to undertake further research with judges at the trial court level. Research of this nature does not have to be expensive. An efficient way of exploring the views of trial judges is to distribute a survey, or conduct focus groups, at judicial education seminars. Several such seminars are held every year across Canada, and offer an ideal opportunity to obtain insight into the perceptions of the judiciary.
Research of this nature would yield enormous practical benefits for the judiciary. For example, it would enable researchers to identify the kinds of issues for which judges seek additional information. It was clear from the discussions we held with judges - and from informal meetings with judges at education seminars over the past few years - that members of the judiciary want more information about the supervision and outcome of conditional sentence orders. However, it is only by means of a systematic research project that we can ensure that the right kind of information is made available to judges across the country.
At the very least judges should have better information about:
- 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 within each jurisdiction;
- 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 some of 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. These questions spring from the issues identified above. The data contained in a Statistics Canada report published in 2003  makes an important start towards a comprehensive database. At the same time, data pertaining to breach and judicial response to breach were not available for certain jurisdictions.
In jurisdictions with a sentencing commission (such as the United States), this research would be conducted by such a body. However, Canada does not have such an organization. Accordingly responsibility for such research is shared among a number of parties, including the Department of Justice Canada, Statistics Canada and provincial correctional agencies. In addition, private researchers or academics also have been involved in compiling conditional sentencing data. We believe that the time has come for an integrated effort that would involve all or many of these participants.
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