The Changing Face of Conditional Sentencing

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

2. The Conditional Sentence: A Canadian Approach to Sentencing Reform (continued)

2.4 The Companion Cases

While Proulx has answered a number of the controversies generated by the addition of s.742.1 into the Criminal Code, it has not turned the judge’s role into an easy one. The difficulty in applying these principles to the hard cases which commonly come to court is exemplified by the results in the companions cases released the same day as Proulx. In Bunn[74], a case of breach of trust theft by a lawyer, the Supreme Court upheld the conditional sentence by a margin of five to three. The fact that the offender was the sole care-giver for a disabled spouse was a significant factor militating against a custodial term.[75] In R. v. L.F.W[76], the judges split evenly on whether to uphold a conditional sentence for a man who, more than 25 years before, committed offences of indecent assault and gross indecency on a young girl who was between the ages of 6 and 12. The offender apparently committed no other offences during the interim, had dealt successfully with an alcohol problem and had a good work record. In R. v. R.N.S[77], all judges agreed that the nine-month sentence of imprisonment should be restored in a case of sexual assault and invitation to sexual touching committed on a step-daughter who was between the ages of five and eight. The case of R. v. R.A.R.[78] involved a sexual assault conviction and two convictions for common assault committed at the workplace by an employer on an employee in her early twenties. L’Heureux-Dube, J. and five other judges allowed the appeal restoring the one year term of imprisonment. In dissent, Lamer, C.J.C. would have maintained the nine month conditional with house arrest and sex offender treatment although they remarked that a lengthier conditional sentence would have been preferable. In the result, only Bunn and L.F.W. maintained their conditional sentences but not without significant dissent. For the other three offenders, a sentence of imprisonment was substituted although stayed since the conditional sentences had already been served and the Crown was not requesting additional punishments.

2.5 Conditional sentences, s.718.2(e) and aboriginal offenders

A few weeks after the decision in Proulx, the Supreme Court issued it decision in Wells[79], which applied the Proulx principles and s.718.2(e) as interpreted in Gladue[80] to the situation of an aboriginal offender who had been convicted of sexual assault. The victim, an 18-year old aboriginal woman, was unconscious at the time of the assault and there was no evidence of penetration. Wells was originally sentence to 20 months imprisonment. The Alberta Court of Appeal upheld the trial judge’s rejection of a conditional sentence notwithstanding fresh evidence of the offender’s involvement in a community alcohol program and his intention to attend a residential program as soon as a place was available. For the Supreme Court, the issue was the significance of the restorative goal in light of the seriousness of the offence. Deferring to the assessment of the trial judge, Iacobucci, J. for a unanimous Court concluded that “it was open to the trial judge to give primacy to the principles of denunciation and deterrence in this case on the basis that the crime involved was a serious one”.[81] He also observed that, while offences which could be placed in the category of Amore violent and serious” were more likely to result in imprisonment, this was not intended to foreclose a finding that a restorative goal was predominant, especially if circumstances pointed to particular community-based response to the kind of offence in issue. Here, one can infer that he was referring to an example like Hollow Water and its response to sexual assault.[82]

If one dissects Wells, the proper approach for considering a conditional sentence for an aboriginal offender involves the following sequential considerations:

  1. A preliminary consideration and exclusion of both a suspended sentence with probation and a penitentiary term of imprisonment as fit sentences;
  2. Assessment of the seriousness of the particular offence with regard to its gravity, which necessarily includes the harm done, and the offender’s degree of responsibility;
  3. Judicial notice of the “systemic or background factors that have contributed to the difficulties faced by aboriginal people in both the criminal justice system, and throughout society at large”; and
  4. An inquiry into the unique circumstances of the offender, including any evidence of community initiatives to use restorative justice principles in addressing particular social problems.

While counsel and pre-sentence reports will be the primary source of information regarding the offender’s circumstances, there is a positive duty on the sentencing judge to inform herself.[83] Assuming that the appropriate sentence is a prison sentence less than two years in length, the judge can, after considering the factors in #2 - #4 above, determine whether a conditional sentence with relevant terms should be ordered.

2.6 Understanding the Breach Mechanism

One aspect of the conditional sentence that receives little attention in Proulx is the complex breach mechanism in s.742.6. It is the subject of only a few brief remarks. First, Lamer, C.J.C. notes that breaches of conditional sentences can be proven on a balance of probabilities although he is careful to add that he is not commenting on the constitutionality of this diminution of the Crown’s burden.[84] Secondly, and potentially more significantly, he offers the view that a conditional sentence breach should be more onerous than a breach of probation.[85] This is consistent with the general approach of distinguishing conditional sentences from probation by ensuring a heavier punitive component. However, he follows this up with the comment that “there should be a presumption that the offender serve the remainder of his or her sentence in jail” if a condition has been breached.[86] This second brief comment about the consequences of a breach is not explained except that it is “more severe” than the consequences of a probation breach by providing and will provided a “constant threat of incarceration”. If followed, this could have substantial impact on proportionality in that it has the potential of increasing the ultimate restriction of liberty, including custodial periods, beyond what the original offence can justify.

There are, however, reasons why an appellate court might classify the comments about breaches as non-binding obiter and not apply the presumption of incarceration. First, there is no real discussion of the elements of the breach mechanism in Proulx and it is conspicuously absent in the summary of general propositions.[87] Secondly, Proulx does not mention the 1999 amendments[88], which have changed the conceptual structure of the breach mechanism by stopping the clock after a breach allegation is commenced. Thirdly, the 1999 amendments contain specific provisions[89] that bear on the expanded restriction of liberty that occurs after a breach allegation is commenced and, accordingly, relate to proportionality. These were not before the court in Proulx. These factors suggest that Proulx was not meant to be decisive on breach issues. The Supreme Court has commenced the project of crafting a new intermediate sanction which will need to be integrated with its statutory breach process. This part of the project has not been accomplished by Proulx.

Section 742.6 was substantially revised in 1999 to address the criticism that the breach mechanism diminished the conditional sentence because it did not stop the clock running while a breach allegation was being considered. This has now been remedied. The first element of the breach mechanism is the requirement of an expeditious proceeding which must be commenced within 30 days of the offender’s arrest for the alleged breach (with or without a warrant) or other authorized order compelling the offender’s appearance.[90] Once commenced, it can be adjourned for reasonable periods until the breach allegation is determined. The breach allegation can be heard by any court with jurisdiction either where the breach is alleged to have been committed or where the offender is arrested. The conditional sentence is suspended commencing with the issuance of a warrant, the arrest without a warrant, or, if the offender is otherwise in custody, the compelling of the offender’s appearance to answer the breach allegation under s.742.6(1)(d). The suspension continues until there is a determination whether a breach occurred or not. However, during the period of suspension, if the offender is not detained in custody, s.742.6(11) provides that the original conditions continue to apply pending the resolution of the breach issue. The breach allegation “must be supported by a written report of the supervisor, which report must include, where appropriate, signed statements of witnesses”.[91] That report is deemed to be admissible evidence at the hearing so long as the offender is given a copy and reasonable notice[92] but the offender can, with leave of the court, require the attendance of the supervisor or any witnesses who provided signed statements.[93]

The central provision of the breach mechanism is s.742.6(9) which provides the essential elements, the burden of proof and the available sanctions:

Where the court is satisfied, on a balance of probabilities, that the offender has without reasonable excuse, the proof of which lies on him, breached a condition of the conditional sentence order, the court may….

One can hardly conceive of a more expeditious route to incarceration. It bears a marked similarity to the parole revocation process. The onus of proof has been reduced to a balance of probabilities and the proof of the existence of a reasonable excuse lies on the offender. While there is a strong argument that s.742.6 violates the presumption of innocence and the “golden thread” which requires the Crown to prove guilt beyond a reasonable doubt, as guaranteed by s.11(d) of the Charter, the issue has been addressed by two appellate courts who have rejected the argument.[94]

Section 742.6(9) also defines the potential consequences of a breach finding:

  1. take no action;
  2. change the optional conditions;
  3. suspend the conditional sentence order and direct
    1. that the offender serve in custody a portion of the unexpired sentence, and
    2. that the conditional sentence order resume on the offender’s release from custody, either with or without changes to the optional conditions; or
  4. terminate the conditional sentence order and direct that the offender be committed to custody until the expiration of the sentence.

Remembering the comment in Proulx about the “presumption of incarceration”, custody can be ordered for a portion or the entire duration of the unexpired sentence. Here, it is important to note that, as a result of the breach allegation, the offender may have been detained in custody or, if in the community has been subject to conditions without the conditional sentence running. In either case, there has been an additional restriction of liberty that must be factored into the determination of the appropriate response to the breach finding. To ensure fairness and proportionality, the judge at the breach hearing should consider re-crediting some of the time on suspension toward the sentence under ss. 742.6(14)[95] and 742.6(16)[96]. The judge should take into account the gravity of the breach and the gravity of the original offence in terms of the correlative jail term that could have been produced to ensure that an inordinate loss of liberty does not arise from the suspension of the conditional sentence. This concern will be enhanced if the duration of the conditional sentence was increased substantially beyond the correlative jail term.

2.7 Framing Sentencing Policy as Reflected by Proulx

When reading Proulx, there is a real sense of trying to turn the clock back.. That is, its author is asking questions about how s.742.1 and its related provisions might be fitted into the Code’s sentencing scheme after it has already been placed there. At the end of the day, we seemed to have returned to a time when people were arguing for a new intermediate sanction - one that would not be restricted to the purely rehabilitated focus of probation, one which would have some penal bite to it, but one which would avoid, at least in the first instance, incarceration. This is a legitimate argument. But it ought to be made to a legislature, not a court, where its resolution might carry with it a guarantee of resources to ensure success, or at least a good chance at success.

After Proulx, we have a new intermediate sanction. It bears some resemblance to intensive probation and some resemblance to judicially-imposed instantaneous parole. It can be suspended and revoked without regard for proof beyond a reasonable doubt in relatively expeditious fashion. Certainly, this has advantages over a sentencing landscape that does not include a Proulx-shaped conditional sentence. However, once can predict certain implications that will follow Proulx:

  1. there will be fewer conditional sentences;
  2. conditional sentences will be of longer duration;
  3. they will contain more restrictive conditions especially more house arrest
  4. there will be less intervention by appellate courts;
  5. proven breaches will result in more incarceration for longer periods.

While Lamer, C.J.C. was concerned in Proulx to ensure that the conditional sentence did not widen the net by moving move into an area previously occupied by non-custodial sanctions, the resulting sanction may have widened the net at the other end. Moreover, there is no reason to expect that the resources required to supervise this new intermediate sanction with restrictive conditions will be provided.

Going back to the original enigma (when should a sentence of imprisonment not be served in prison), the answer may lie in the recognition that the decision between a conditional sentence and a sentence of imprisonment is about denunciation. The tilt should be towards a conditional sentence unless the denunciatory objective outweighs the reformative ones. As result, the important questions are:

  1. Was the specific offence, although of a type that ordinarily requires denunciation, committed in circumstances that diminish the need for denunciation;
  2. Are there personal circumstances which make it unfair to the offender or an undue hardship on others to require the offender to carry the denunciatory message; or
  3. Are there circumstances that suggest that the denunciatory message can be conveyed in some way other than incarceration?

Whether this approach is reconcilable with Proulx and whether it will provide a better analytical framework for judges is worthy of debate. Without a clearer framework and with deference restricting appellate review, offenders are at the mercy of how a particular trial judge characterizes the gravity of the offence and the risk of re-offending presented by the offender. In carrying out the complex balancing tasks discussed in Proulx, judges must be cautious that inherent biases do not privilege certain offenders and disadvantage others. They must also be sensitive to the underlying parliamentary direction to move away from incarceration as an easy and prevalent response whenever the pre-conditions of s.742.1, in conformity with the principles and objectives of sentencing, permit it.

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