The Changing Face of Conditional Sentencing

2. The Conditional Sentence: A Canadian Approach to Sentencing Reform Or, Doing the Time-Warp , Again

2. The Conditional Sentence: A Canadian Approach to Sentencing Reform Or, Doing the Time-Warp, Again

Allan Manson,
Faculty of Law, Queen’s University

2.1 Introduction

We are in the fourth year of the conditional sentence regime and 50,000 offenders have been given conditional sentences. To appreciate the full scope of the impact of this innovation, you have to add in the number of cases where a conditional sentence was considered and rejected. During this period, participants in the criminal justice system have struggled with the apparent statutory enigma that seems to arise from s.742.1 of the Criminal Code: when is a required sentence of imprisonment not required? Of course, this is an over-simplification. The real dilemma for the past few years has been how to interpret the statutory pre-conditions in a way that will promote the following goals:

  • consistency with statutorily-entrenched principles;
  • integration into an existing sentencing scheme that encompasses both custodial and non-custodial sanctions; and
  • reduction of the use of incarceration.

A concomitant concern has been to pursue these goals without diminishing, or further diminishing, public confidence in the sentencing function of the criminal justice system during a time when the “law and order” mood continues to stir public opinion.

In early 2000, the Supreme Court of Canada issued six judgements[30] that answer a number of the legal questions that had been generated by trial and appellate court decisions since the introduction of conditional sentences. The primary judgment was a unanimous decision in R. v. Proulx[31], a case of dangerous driving causing death and bodily harm. The other five cases provided interesting insights into how the Proulx principles can be applied. A few months later, we are now starting to see some appellate court decisions applying and interpreting the set of Supreme Court decisions. At the same time, empirical data about the conditional sentence seems to show that, notwithstanding the popularity of conditional sentences, they have not produced a commensurate reduction in the use of imprisonment. Understanding this data requires careful analysis, additional data that focuses on specific issues, and a disciplinary expertise that I do not have. However, the apparent empirical doubts about efficacy make it both pertinent and timely to slow down and ask three questions about the development of the conditional sentence:

  1. What is the current state of the law of conditional sentences?
  2. What sentencing policy choices does this law reflect?
  3. Should sentencing reform take place in this manner?

In addressing these questions, it is necessary to examine the Proulx decision in detail. It is also important to step back and examine exactly what has happened over the past decade.[32] In applying a broader perspective to Proulx, one is captured by the impression that it is somehow “out of synch”. That is, the timing is out of sequence. The reason for this is, in my view, also the answer to what has happened: the Supreme Court has crafted a new intermediate sanction. While many people have argued that we needed one[33], I doubt if anyone expected the Supreme Court to be its designer.

It is to soon to tell whether the post-Proulx conditional sentence is a good or bad thing. Before reaching any conclusions about its efficacy and legitimacy, we will need to consider its applicability and observe its effects. It may seem attractive to muse about whether the analysis required by the set of conditional sentence cases was appropriate for the Supreme Court given its institutional structure within our justice system, but it is clear that the Court could not abdicate its role and avoid the task. Whether it was a fair task to impose is another matter.

2.2 The Pragmatic Approach of the Supreme Court

Early in the decision in Proulx, Lamer, C.J.C. indicates what he considers the purpose of conditional sentences to be:

With the advent of s.742.1, Parliament has clearly mandated that certain offenders who used to go to prison should now serve their sentences in the community. Section 742.1 makes a conditional sentence available to a subclass of non-dangerous offenders who, prior to the introduction of this new regime, would have been sentenced to a term of incarceration of less than two years for offenders with no minimum term of imprisonment.[34]

This capsulized expression of the role for conditional sentences flows largely from comments made by Cory and Iacobucci, JJ. in Gladue[35] which required the Supreme Court to consider, in general terms, the purpose and effect of the sentencing amendments. They concluded that a major purpose to be the intention to reduce the use of incarceration. After Gladue, it was inevitable that the Supreme Court would apply the same general characterization to the various elements of those changes, especially conditional sentences, which had been highlighted as one of the indicia of the concern about over-incarceration. It was not clear, however, exactly what this might mean for conditional sentences.

This question was, to a great extent, answered when Lamer, C.J.C. foretells the analytical perspective that will dominate the subsequent analysis and will determine each discrete subordinate issue that the court addresses:

In my view, to address meaningfully the complex interpretive issues raised by this appeal, it is important to situate this new sentencing tool in the broader context of the comprehensive sentencing reforms enacted by Parliament in Bill C-41. I will also consider the nature of the conditional sentence, contrasting it with probationary measures and incarceration.[36]

The generous reference to Bill C-41 as “comprehensive reform” may be an over-statement[37] but the Supreme Court’s plan is clear. It intended to assume the role of sentencing reformer and set out to develop an intermediate sanction. The approach is reminiscent of the early pages in Morris and Tonry’s Between Prison and Probation[38] which stirred much interest in intermediate sanctions.[39] Whether the intention to craft a new intermediate sanction was a product of the former Chief Justice’s earlier role with the Law Reform Commission of Canada, which investigated sentencing intensively in the 1970s, or whether it derived entirely from the enigmatic statutory context which C-41 thrust upon the judiciary, this was how the Supreme Court saw its task. Starting from this point, it became essential for the Supreme Court to ensure that the sanction be both non-custodial and, in some way, more intensive or harsher than the pre-existing probation scheme. The conditional sentence is served in the community but must be more punitive than probation. Otherwise, it would be “surplusage”.[40] This is the pragmatic approach taken in Proulx but the subsequent exercise is a subtle and challenging one, akin to looking for an intermediate sanction in a Criminal Code haystack. Early in the decision, the Supreme Court emphasizes the same philosophical platform that it adopted in Gladue, the need to introduce restorative principles while at the same time tempering the new sanction with the concern that it also serve, in plainly perceptible ways, the retributive aspects of sentencing.[41]

2.3 The Current Law as Interpreted by the Supreme Court

Of the many issues which had been the subject of debate by appellate courts, by the time the conditional sentence came to the Supreme Court it was clear that there were a number of specific controversies that needed to be resolved. How to resolve them was another matter. As we examine the issues individually, it seems that the principal determining factors were the need to distinguish a conditional sentence from probation, and the re-emphasis of individualization and deference as methodological cornerstones of sentencing.

(a) The potential scope of conditional sentences

The Supreme Court has confirmed that, notionally at least, a conditional sentence can be imposed for any offence unless, as stipulated by s.742.1, it is an offence that carries a “minimum term of imprisonment”. This is an important point. It means that no offence is so intrinsically grave that it is precluded from consideration for a conditional sentence regardless of the circumstances of the offence and the circumstances of the offender. Of course, some offences include features as essential elements that would make the availability of a conditional sentence unlikely. A number of specific offences were used in argument in Proulx as examples of situations where a conditional sentence should not be considered: sexual offences against children, aggravated sexual assault, manslaughter, serious fraud or theft, serious morality offences, impaired or dangerous driving causing death or bodily harm, and trafficking in narcotics or possession for the purpose of trafficking. The response was unequivocal: a conditional sentence is available in principle for all offences where the statutory prerequisites are met.[42] Sentencing courts are well-suited to characterizing less grave instances of offences and to identifying the individual factors which can change or even reverse the lens usually used to assess the offence.

Manslaughter is a good example. A non-custodial sanction may be unlikely and even rare but it cannot be excluded from consideration out of hand. There have been cases where the history between the parties, the context of the killing and post-offence rehabilitative efforts combine to suggest a basis for sympathy that negatives the usual demand for a retributive response. In a case that occurred prior to the conditional sentence regime, a suspended sentence was imposed on a young man convicted of manslaughter in respect of the killing of his father.[43] Moldaver, J. characterized the brutal environment in which the father had essentially imprisoned and abused his son as “horrendous domination” and used adjectives like “cruel, insensitive, inhumane and unthinkable” to describe it. In a more recent example, Getake[44], a woman was convicted of manslaughter after being tried on first degree murder in relation to the killing of her husband. While the jury had not accepted the self-defence evidence, the judge considered the extensive psychiatric evidence and found that she had been depressed and suffering from chronic post traumatic stress syndrome at the time of the offence due to abuse inflicted by the husband. After hearing about her efforts to rebuild her life with her children in a new location, he imposed a conditional sentence of two years less a day. The same result occurred, and was upheld on appeal, in Turcotte[45] where the accused had killed his mother after they had spent the day drinking. In this case, the major reason for the conditional sentence was the dramatic positive changes in the offender’s life since the offence.[46] This brief review is not intended to support the proposition that manslaughter should result in a non-custodial sentence but simply to illustrate that there may be situations where an individualized inquiry may suggest that a conditional sentence is appropriate.

(b)The judge’s initial or threshold decision

Section 742.1(a) requires that the situation be one where the court “imposes a sentence of imprisonment of less than two years”. This phrase and the use of the word “imposes” in the present tense has produced controversy about the role of, and decision-making methodology for, conditional sentences. However, these issues have now been laid to rest by the Supreme Court’s decision in Proulx. Transcending the specific language, it is clear that s.742.1 speaks not the specific sentence but to the sentencing context. The judge must have considered and rejected both a non-custodial sanction and a sentence of incarceration of two years or more. In other words, to make a conditional sentence a legitimate consideration, the appropriate penalty cannot be a non-custodial sanction, like a fine or probation, nor can it be a penitentiary term of imprisonment. To paraphrase Morris and Tonry, it must be “between penitentiary and probation”. The sentencing judge must have rejected both the low-ball and high-ball submissions leaving as the sentencing context a potential sentence of incarceration of less than two years in length. At this stage, the sentencing judge does not impose a sentence but only determines that the sentencing context implicates s.742.1. While Lamer, C.J.C. defines the initial decision as simply one of excluding the lower and higher options, it seems to me, however, that it is prudent for the judge to contemplate the appropriate range of the correlative term of imprisonment at least in approximate terms. This way, there will be some yardstick to assist in maintaining proportionality, which, as I will discuss later, is a serious issue.

(c) The second stage of the decision

Here, the judge must determine a number of issues:

  1. will service in the community endanger the safety of the community?
  2. will service in the community be consistent with the purpose and principles of sentencing set out in ss.718 to 718.2?
  3. if service in the community is justified, what should its duration be and what conditions should be attached to it?
i. Endangering the safety of the community

The decision in Proulx has directed sentencing judges to look only to the risk of re-offending which service of the sentence in the community might generate. Thus, a concern about whether a conditional sentence may diminish the deterrent or denunciatory objective of sentencing is not a legitimate reason to hold that the safety of the community has been endangered. Risk, however, is not restricted to offences against the person that may cause physical or psychological injury but also includes the risk of economic harm through the loss of property or financial resources. The risk assessment includes both the extent and gravity of potential risk. Here, the words of Lamer, C.J.C. are tough:

If the judge finds that there is a real risk of re-offence, incarceration should be imposed. Of course, there is always some risk that an offender may re-offend. If the judge thinks this risk is minimal, the gravity of the damage that could follow were the offender to re-offend should also be taken into consideration. In certain cases, the minimal risk of re-offending will be offset by the possibility of a great prejudice, thereby precluding a conditional sentence.[47]

A judge can countenance some risk of re-offending. Moreover, the circumstances may suggest specific conditions which can further ameliorate the risk of re-offending to the point where service in the community is justified.[48]

Lamer, C.J.C. makes two interesting observations when discussing conditions in relation to endangerment of the community. First, he mentions the drug addict who may be a suitable candidate for a conditional sentence because of the way that conditions can structure a rehabilitative context. Secondly, he says the “judge must know or be made aware of the supervision available in the community”.[49] If the level of supervision is inadequate to “ensure safety”, then the offender should be incarcerated.[50] There is no question but that it is important for sentencing judges to be familiar with the current inventory of resources in their communities. We all recognize that the insertion in the Code of an option does not guarantee that the responsible authorities, usually provincial or territorial agencies, will provide the resources and infrastructure to make it work effectively and fairly.[51] The answer to the resource problem cannot simply be incarceration. Given the underlying Parliamentary intention to reduce incarceration, sentencing judges ought to state publicly that the reason for incarceration is the absence of appropriate supervisory resources.

ii. Conforming with the principles in 718 to 718.2

A number of important observations can be distilled from the Proulx decision. First, the principle of restraint reflected by ss.718(c) and 718.2(d) and (e) applies to the choice between a conditional sentence and a prison sentence.[52] While there is no presumption in favour of a conditional sentence for any particular offence[53], assuming that there is no risk of danger to the safety of the community, the principle of restraint suggests a tilt in favour of a conditional. This, it seems to me, must be the case. Consider how Lamer, C.J.C. describes the nature of the conditional sentence as it relates to the objectives of sentencing and the 1996 amendments:

Two of the main objectives underlying the reform of Part XXIII were to reduce the use of incarceration as a sanction and to give greater prominence to the principles of restorative justice in sentencing-the objectives of rehabilitation, reparation to the victim and the community, and the promotion of a sense of responsibility in the offender.

The conditional sentence facilitates the achievement of both of Parliament’s objectives. It affords the sentencing judge the opportunity to craft a sentence with appropriate conditions that can lead to the rehabilitation of the offender, reparations to the community, and the promotion of a sense of responsibility in ways that jail cannot. However, it is also a punitive sanction. Indeed it is the punitive aspect of a conditional sentence that distinguishes it from probation.[54]

When a judge applies proportionality and restraint in an individualized way to the gravity of an offence as committed by the particular offender, he or she is seeking to determine which of the potential objectives of sentencing ought to be addressed. Some of the objectives in s.718 are reformative and others are retributive or penal. The reformative objectives are rehabilitation and reparation. These encompass the goals that are customarily described as restorative. The retributive or penal objectives are denunciation, deterrence, and separation. The duality in the basic nature of a conditional sentence means that the tilt is in its favour for two reasons: (1) we are assuming a finding of no danger in terms of a risk of harm caused by re-offending; and (2) a penal objective can be served by the conditional sentence. The conclusion seems to be that imprisonment should be chosen only when the gravity of the offence points to a penal objective either to the complete exclusion of any interest in rehabilitation or reparation, or to an extent that cannot be accommodated by a conditional sentence, no matter how onerous the conditions. However, the simple existence of aggravating factors in relation either to the offence or the offender does not, by itself, negate the possibility of a conditional sentence[55], although factors that aggravate the gravity of the offence may reinforce the claim for a penal objective.

iii. Duration of the conditional sentence

This is an important issue which bears on proportionality and may ultimately affect the efficacy of conditional sentences. Lamer, C.J.C. has made clear his view that there need be no equivalence between a conditional sentence and the length of a prison term that would otherwise be imposed. He does not, however, say that a conditional sentence must be longer than the correlative sentence of imprisonment only that it can be. After explaining why the decisions about duration and venue cannot be separated[56], he states:

This approach does not require that there be any equivalence between the duration of the conditional sentence and the jail term that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sanction.[57]

Other than the rejection of a penitentiary term, the decision about duration only arises within the context of making the decision between a conditional sentence and a prison sentence. A fair decision may be to impose a conditional sentence with a period of control that is longer than the correlative custodial term. This suggests an equivalence not in length but in penal bite, that is, the amount of denunciation that the conditional sentence provides through its public expression and its operative conditions.

Lamer, C.J.C. notes that “duration will depend on the type of conditions imposed”[58] and follows this comment with a discussion of the denunciatory potential of conditional sentences and the stigma that attaches to house arrest. The major influence on duration seems to be the amount of denunciation that the seriousness of the offence demands.[59] If a conditional sentence cannot provide the required amount of denunciation, then custody will be the result. This is not the case with general deterrence about which Lamer, C.J.C. warns that judges should be “wary” about placing too much weight on it as a factor in determining whether to permit service in the community. With respect to the ability to extend a conditional sentence beyond what the correlative sentence of imprisonment would be, there is no indication that Lamer, C.J.C. means that duration can be extended to encompass to accommodate the suggested length of a treatment plan. Extending a state-imposed restriction of liberty for rehabilitative purposes beyond what can be justified by the offence would be contrary to usual sentencing practise. He has unhinged duration from the length of the correlative jail sentence but not for every case. An extension is only acceptable when the gravity of the offence requires it to serve its intrinsic denunciatory objective. Here, it must be remembered that the principles of proportionality and restraint also apply in determining the length of the conditional sentence. Extensions as a matter of practise are not dictated by the decision in Proulx and will run afoul of these principles if they are not restricted to proper cases.

(d) Conditions

The Supreme Court has encouraged creativity in crafting appropriate conditions.[60] Contrasting conditional sentences with the purely rehabilitative nature of probation, the Supreme Court said:

…Parliament intended that conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty.[61]

Significantly, Lamer, C.J.C. indicated that “punitive conditions such as house arrest should be the norm not the exception”. Still, the most important factors are whether the conditions are needed to address safety through restricting the opportunity to re-offended and the extent to which the offender’s circumstances point to special conditions which will have rehabilitative, restorative or denunciatory value. Restraint applies to the imposition of conditions and courts should be careful not to heap on more terms without clear justification and without regard to their effectiveness. It should be noted that once imposed, conditions can be varied.[62]

In discussing conditions, Lamer, C.J.C. adopted a statement made in a speech by Rosenberg, J.A. in which he warned against the use of conditions that were “purely cosmetic and are incapable of effective enforcement”.[63] This comment reflects the dual concern that restraint should be exercised to ensure that conditions are necessary and practicable. They should not be imposed if there are no resources to effect and supervise them. Mr. Justice Rosenberg also expressed concern about conditions which could only be enforced “through an intolerable intrusion into the privacy of an innocent person”. Here, one should pause to note the burden which house arrest may produce for others. While Lamer, C.J.C. expressed concern that conditional sentences should “generally” contain punitive conditions that restrict liberty[64], house arrest is only one example and should not be imposed without considering whether the environment permits it.[65] There have been other examples of inappropriate obligations on third parties like the unconscionable conditions in Waldner[66] that the family move to a place where no children lived within a ten mile radius and pay personally for all therapeutic costs. These were quickly deleted after a period for reflection.[67]

(e)Deference to Trial Judges

Again in Proulx, the Supreme Court repeated and emphasized its earlier decisions[68] which articulated the standard of “considerable deference”[69] which controls the relationship between an appellate court and the original trial court. In essence, absent either an error in principle, the consideration or an irrelevant factor, the over- emphasis of a relevant factor, or a demonstrably unfit sentence, an appellate court should not intervene. Applying this standard to conditional sentence decisions, the Supreme Court has indicated that the questions “as to what objectives should be pursued and the best way to do so” may generate different views but a disagreement between the court of appeal and the trial judge does not justify interference.[70] This suggests an enhancement of the role of the trial judge with respect to the characterization of the gravity of the offence, the objectives which need to be addressed, and the balance between them. Here, it should be pointed out that the entrenchment of deference has become the subject of attention by some appellate courts, who are concerned that its application may deny some offenders of a fair right of appeal.[71] This may become more apparent in conditional sentence cases given the domain of issues that seem to have been delegated pre-eminently to the trial judge’s discretion. Of course, the inclusion of “over-emphasis” of a relevant factor as a lever that permits review must also necessarily include the corollary of “under-emphasis” of a relevant factor. Surely, this is logical.[72] This recognition ought to provide some opportunity for review if an appellate court considers that a trial judge has wrongly appreciated the significance of a relevant factor in a way that has slanted the ultimate balance.

While the repetition of the deference standard should come as no surprise, when the various principles were applied to the facts, Lamer, C.J.C. also adds the following observation:

…trial judges are closer to their community and know better what would be acceptable to their community.[73]

This cannot mean that public acceptability is a legitimate factor. Over time, one hopes that sentences are understood and accepted by informed members of the community. However, we live in “law and order” times. It is a dangerous use of words to suggest that, as a precept, public acceptability should influence judicial decision-making.

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