The Future of Conditional Sentencing: Perspectives of Appellate Judges

5. Conclusions

This project has afforded a unique insight into the experiences and perceptions of appellate judges in three provinces. But what conclusions can we reasonably draw from it? First, it seems clear that most, but by no means all, of the participants saw little to be gained from amending the statutory framework of the conditional sentence, either in terms of statutory exclusions, statutory presumptions, or new statutory limits. More importantly, they saw much that would be lost in terms of undermining the ability of sentencing judges to impose a fit disposition. In other words, with respect to imprisonment, the Canadian approach to sentencing requires ample discretion to permit judges to make individualized assessment in hard cases. Controversial decisions that overstep the bounds of fitness will be reversed by appellate courts. Over time, appellate courts will generate sufficient threshold criteria. Second, it was equally clear that there was considerable concern about the administration of the sentence, either in actual terms or at least at the level of public perception. Third, many judges expressed a desire to know more about the breach rates, and a number were skeptical about the limited data on breach dispositions.

A skeptic might say that there is nothing unusual in finding that judges favour judicial discretion. However, the results of these discussions carry important consequences. On the one hand, there was a real respect shown by appellate judges for the experience of trial judges. On the other hand, there was inherent confidence that, with time, appellate courts can adequately compare situations and sort out those factors that place an eligible case beyond the scope of a conditional sentence. [1] The judges were comfortable with this 'guideline' function and preferred its flexibility to any form of statutory intervention.

[1] Examples discussed were drug trafficking and possession of child pornography.

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