The Changing Face of Conditional Sentencing

3. Conditional Sentences, Restorative Justice, Net-widening and Aboriginal Offenders

3. Conditional Sentences, Restorative Justice, Net-widening and Aboriginal Offenders

Kent Roach[97]
Professor of Law and Criminology, University of Toronto

Introduction

The Supreme Court’s six recent decisions in conditional sentencing cases provide a good opportunity to reflect on conditional sentences as one of the most important and controversial innovations in sentencing in decades. The cases themselves do not answer all the questions and they sometimes point in ambiguous and even contradictory directions. This is not surprising because conditional sentences are themselves quite Janus-faced. They are criticized by some as a slap on the wrist for those who should be punished severely and as a glorified probation order. On the other hand, they are criticized as an intrusive form of net-widening imposed on offenders who would never have gone to prison.

The Supreme Court offers some answers to both these criticisms but the result is something of an unsatisfying saw off. In an attempt to make conditional sentences meaningful and to distinguish them from probation orders, the Court has encouraged the use of punitive conditions such as house arrest and curfews and onerous restorative conditions such as treatment orders. It has also authorized trial judges to order conditional sentences that are longer than equivalent jail terms and has created a new presumption that offenders will be jailed upon proof of breach for the duration of the conditional sentences. These factors may make conditional sentences more meaningful, but they may also contribute to net widening and even the eventual imprisonment of offenders serving conditional sentences.

At the same time, the Court has probably not convinced critics (and perhaps itself) that conditional sentences are a severe enough sanction for serious crimes. Although the Court rejected Crown arguments that conditional sentences are an inherently disproportionate response to serious crimes such as sexual assault and dangerous driving causing death, it did indicate that the need to deter and denounce such crimes can justify the use of imprisonment. This aspect of the Court’s decision may also increase net widening by reducing the opportunities to use conditional sentences as true alternatives to jail. As such I am not optimistic that conditional sentences will reduce reliance on imprisonment and in particular the overincarceration of Aboriginal people. Indeed, there is even a danger that conditional sentences will unintentionally help increase the overincarceration of Aboriginal people and other offenders.

Another important feature of the conditional sentence cases is the Court’s embrace of restorative justice as a sentencing approach which justifies the use of conditional sentences. The reliance on restorative justice adds to the ambiguity and complexity of the conditional sentence jurisprudence because restorative justice has not traditionally been seen as a sentencing philosophy and it means different things to different people. There is also a danger that the Court’s understanding of restorative justice and its equation of the use of restraint in imprisonment with the use of onerous restorative conditions in conditional sentences will, when combined with the unwillingness of the Court to use conditional sentences in the most serious cases, also increase netwidening and perhaps the overincarceration of Aboriginal people.

The first part of this brief discussion paper will examine the issue of net widening. The second part will then examine how the Court has approached the use of conditional sentences in cases of serious crimes, including its understandings of proportionality, denunciation and deterrence. The third part will examine the Court’s understanding of restorative justice. The fourth part will then reflect on the possible effects of the Court’s conditional sentencing jurisprudence on Aboriginal offenders.

3.1 Net Widening

I take net widening to refer to any process in which offenders are subject to more intrusive sanctions than before. Thus net widening would occur if offenders who would be fined or subject to a probation order are now subject to a conditional sentence. It would also occur should an offender who would not normally be imprisoned be sent to jail because of a breach of a conditional sentence order or be jailed for a longer period of time than if he or she had never been subject to a conditional sentence order. This may be a slightly wider definition of net widening than used by others but I believe it is one that makes sense for policy-makers.

The Canadian experience with conditional sentences strongly suggests conditional sentences have resulted in net widening.[98] In the first two years of their existence, over 28,000 conditional sentences were ordered.[99] It is clear that prison populations did not decrease by such a large number even though conditional sentences were defined as sentences of imprisonment that should be served under strict conditions in the community.

At one level, the Court has responded to concerns about net widening in its recent conditional sentence cases. The Court has attempted to define conditional sentences as a tough sanction just short of imprisonment. Hence Chief Justice Lamer has stated that conditional sentences must be distinguished from probation by punitive conditions such as house arrest and strict curfews. He added:

There must be a reason for failing to impose punitive conditions when a conditional sentence order is made. Sentencing judges should always be mindful of the fact that conditional sentences are only to be imposed on offenders who would otherwise been sent to jail. If the judge is of the opinion that punitive conditions are unnecessary, then probation, rather than a conditional sentence, is most likely to be appropriate. [100]

The Court has made an admirable attempt to situate conditional sentences at the harsh end of the scale of intermediate sanctions short of imprisonment. If courts follow this advice, then there should be a reduction in the use of conditional sentences and an increase in the use of probation orders and other less severe sanctions. Conditional sentences should be reserved for serious crimes that require onerous restorative and punitive conditions, but not actual imprisonment.

It is my view that the above scenario is overly optimistic for a variety of reasons. As will be discussed in the second part of this discussion paper, the Court has sent a message that conditional sentences will rarely be appropriate for serious offences which require denunciation and deterrence. It is in these cases that conditional sentences could most often be a genuine alternative to imprisonment. The caution about using conditional sentences in the most serious cases decreases the opportunities for using conditional sentences as true alternatives to significant prison terms.

Another concern is that when conditional sentences are used, the Court has written a virtual prescription for net widening. The Court has held that the length of a conditional sentence can be longer than an actual term of imprisonment. This may be acceptable if conditional sentences are used as real alternatives to imprisonment, but if they are not, it means that offenders will be subject to conditions for a longer duration of time than a probation order. This in itself is net widening. It also increases the possibility of a breach. Next the Court instructs trial judges that punitive conditions such as house arrest and curfews “should be the norm, not the exception”.[101] This again increases the chance of breach especially in those provinces which employ electronic monitoring which make such conditions enforceable. To be fair, however, it should be noted that the Court also warned trial judges that “conditions will prove fruitless if the offender is incapable of abiding by them, and will increase the probability that the offender will be incarcerated as a result of breaching them.”[102] This and the Court’s comment about the need for enforceable conditions, however, should be seen more against the backdrop of direct imprisonment as an alternative.

Finally, and as will be discussed in the third part of this discussion paper, the Court’s emphasis on restorative justice also has the potential to contribute to net widening by encouraging judges to impose conditions designed to rehabilitate the offender and provide reparation for the victim and the community. These conditions may be quite intrusive and this again increases the possibility of breaches. Thus the net cast over offenders subject to conditional sentences is long and thick. The likelihood of breaches increase with the severity and duration of conditions. In its recent cases, the Supreme Court has sent clear messages to trial judges to increase the length and severity of conditional sentences and to imprison offenders who breach the conditions.

The severe even draconian breach provisions also contribute to net widening. Those arrested for a breach face a reverse onus on bail. They also have an onus to demonstrate a reasonable excuse for the breach. Finally, the breach only has to be proven on a balance of probabilities and can be established on the basis of hearsay evidence such as a parole officer’s report. Although the judge has a wide range of disposition options under s.742.6(9) once a breach has been established, the Supreme Court has effectively created a presumption for the most severe of the possible dispositions. Lamer C.J. has stated that “where an offender breaches a condition without reasonable excuse, there should be a presumption that the offender serve the remainder of his or her sentence in jail. This constant threat of incarceration will help to ensure that the offender complies with condition imposed…It also assists in distinguishing the conditional sentence from probation by making the consequences of a breach of condition more severe.”[103] Remember that the length of the conditional sentence will be longer than if the offender went directly to jail. This is a recipe for net widening.

3.2 Serious Crimes: Proportionality, Deterrence and Denunciation

Many of the Crowns in the conditional sentence cases argued that conditional sentences were a disproportionately lenient response to serious crimes such as sexual assault and dangerous driving causing death. Their arguments reflected public concerns about the leniency of conditional sentences and the status of proportionality as the fundamental principle of sentencing. The Crowns lost on this point and the Supreme Court made clear that the only way that Parliament can exclude particular offences from conditional sentences is by amending the Code either to exclude the offence from the regime or by imposing a mandatory minimum term of imprisonment. The Court has also clearly indicated that 718.1 of the Criminal Code does not reflect a crude form of “just deserts” that ties punishment solely to the crime committed. Such an approach would collapse the distinct sentencing purposes of proportionality and denunciation[104] and ignore the reference in s.718.1 to the offender’s degree of responsibility as well as the gravity of the offence. In rejecting Crown arguments that conditional sentences would not be a proportionate response to certain serious crimes, Chief Justice Lamer has strongly and in my view rightly concluded that such an approach “focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender. This fundamentally misconstrues the nature of the principle. Proportionality requires that full consideration be given to both factors.”[105]

The Crowns may have lost the proportionality war only to win significant battles on the issues of deterrence and denunciation. In RNS[106], an unanimous Court ruled that a 9 month conditional sentence was insufficient to deter sexual touching and sexual assault of a child. Four judges (admittedly in dissent) were of the same view in the similar case of LFW[107]and the decision to uphold the conditional sentence was related to deference to the trial judge, the fact that the offender had not re-offended in 25 years since the assault and the 21 month duration of the conditional sentence. In Wells[108], an unanimous Court upheld a 20 month imprisonment sentence for sexual assault as based on the need to deter and denounce such a crime. In Proulx, the Court again stressed general deterrence and denunciation in upholding a 18 month prison sentence for dangerous and drunken driving causing death and bodily harm. The message implicit in these decisions seems to be that imprisonment is well suited and perhaps necessary to deter and denounce serious crimes.

The Court has, however, left the door open a crack for trial judges to demonstrate that restorative sanctions can send a message to the community that both deters and denounces serious crimes. In a recent post-Proulx case, Vancise J.A. of the Saskatchewan Court of Appeal has concluded that punitive conditions in a conditional sentence can deter and denounce drug trafficking.[109] As will be suggested in the third part of the paper, some forms of restorative justice may not only be a proportionate form of accountability for the offender but may help denounce and deter some crimes in some communities. As such the Court’s connection of imprisonment with deterrence and denunciation is somewhat less absolute than would have resulted had the Crowns been successful in arguing that imprisonment is the only proportionate response to serious crimes. Nevertheless, trial judges and policymakers have some work to do in displacing the Supreme Court’s implicit assumption that imprisonment is necessary to deter and denounce serious crimes.

Given the Supreme Court’s recent pronouncements, is it necessary to amend the legislation to prevent the use of conditional sentences to respond to serious crimes such as sexual assault? At a superficial level, the answer may be yes because the Court has refused to declare that conditional sentences will always be a disproportionate response to such serious crimes. It has left open the possibility that trial judges can order conditional sentences in serious cases but only if they are satisfied 1) that the conditional sentence will respond to the gravity of the offence and the offender’s degree of responsibility; 2) that it will achieve all the purposes of punishment including the deterrence and denunciation of the crime and 3) that the public will not be endangered by the prospect of the offender re-offending while on the conditional sentence. In the vast majority of serious cases, trial judges may conclude that all of the above requirements are not satisfied. A legislative amendment would, however, prevent trial judges from using conditional sentences in those exceptional cases where the above requirements are all satisfied. In such exceptional cases, the community, including Aboriginal communities, may often have made a real commitment to deal with the crime seriously. Thus an amendment preventing the use of conditional sentences in serious cases would achieve little, but frustrate trial judges and communities in those rare cases where they are both convinced that a conditional sentence is the appropriate response to a serious crime.

3.3 Restorative Justice

An important and intriguing feature of these conditional sentencing cases (and Gladue[110]) is the Supreme Court’s acceptance of restorative justice as a sentencing philosophy and one that supports the use of conditional sentences. It is now no longer possible to understand the jurisprudence of sentencing without understanding restorative justice as understood by the Supreme Court.

Restorative Justice as a Sentencing Philosophy

Restorative justice is most often used to describe informal and non-adjudicative

forms of dispute resolution such as victim offender mediation, family conferences and Aboriginal forms of justice which give victims, offenders and the community decision-making power. The Law Commission of Canada has recently articulated three fundamental principles of restorative justice. They are 1) crime is a violation of a relationship among victims, offenders and the community 2) restoration involves the victim, the offender and community members and 3) a consensus approach to justice.[111] Restorative justice taken in its pure sense is more a form of diversion than a sentencing philosophy for judges who take their definitions of crime from the Criminal Code and caselaw, who hear submissions in the context of an adversarial system of justice and who, in theory, do not act on the basis of consensus. Restorative justice as employed by judges at sentencing may be more coercive and more conducive to net widening than when employed as a form of diversion.

The emergence of restorative justice as an approach to sentencing has been quick and dramatic. One need only to re-read the 1987 report of the Canadian Sentencing Commission to see how little impact restorative justice played in that important discussion of sentencing reform. The 1988 Daubney Committee did, however, express interest in restorative justice and this eventually found its way in the 1996 sentencing reforms in s.718(e) and (f) which provide that sentences may provide “reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.” With some notable exceptions[112], most of those who contributed to the voluminous commentary that accompanied Bill C-41 did not see these provisions as a revolutionary new change in sentencing or one that ushered in restorative justice as a new paradigm for sentencing.

The Supreme Court, however, took these new provisions very seriously. In Gladue, Cory and Iacobucci JJ. observed that while the other objectives in s.718 were “in part, a restatement of the basic sentencing aims”, ss.718(e) and (f) are new and along with rehabilitation (s.718(d)):

…focus upon the restorative goals of repairing the harm suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgement of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras (d), (e), and (f)….involves some form of restitution and reintegration into the community. The need for offenders to take responsibility for their actions is central to the sentencing process…Restorative sentencing goals do not usually correlate with the use of prison as a sanction. In our view, Parliament’s choice to include (e) and (f) alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders. The principle of restraint expressed in s.718.2(e) will necessarily be informed by this reorientation. [113]

Most of this crucial passage is quoted with approval by Lamer C.J. in Proulx[114], who adds that “Parliament has mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society. By placing a new emphasis on restorative principles, Parliament expects both to reduce the rate of incarceration and improve the effectiveness of sentencing.”[115] These are crucial passages which deserve close analysis.

The Court interprets ss.718(e) and (d) as adding something genuinely new to sentencing and that is a desire to achieve restorative justice. The Court in Proulx defines restorative justice as attempts “to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved. This is accomplished, in part, through the rehabilitation of the offender, reparations to the victim and to the community, and the promotion of a sense of responsibility in the offender and acknowledgement of the harm done to victims and to the community.”[116] Restorative justice has become so important in these recent conditional sentence cases that the Court has articulated the balance to be achieved between punitive and restorative goals as the key feature in determining whether a conditional sentence will be appropriate.

The Supreme Court has gone beyond the New Zealand Court of Appeal in its recognition and embrace of restorative justice. This is ironic because New Zealand with its use of Maori inspired family conferences is in many ways the home of the recent movement towards restorative justice and has institutionalized restorative justice to a greater extent than Canada. Nevertheless, its highest court, the New Zealand Court of Appeal, has given restorative justice more limited recognition than the Supreme Court of Canada. In the Clotworthy case, it overturned a restorative sanction that would have given the victim of a violent robbery a $15,000 compensation order for cosmetic surgery to repair an embarrassing scar caused by six stab wounds in favour of a four year imprisonment sentence designed to deter others from offending.[117] The New Zealand Court of Appeal concluded that “a wider dimension must come into the sentencing exercise than simply the position as between victim and offender” including “the public interest in consistency, integrity of the criminal justice system and deterrence of others.”[118] Although the New Zealand Court of Appeal added that its decision was not based on “any general opposition to the concept of restorative justice”[119], it was hardly a ringing endorsement as compared to Gladue and Proulx.

The Many Faces of Restorative Justice

Popular ideas in criminal justice will frequently mean different things to different people. The retributive ‘just deserts’ movement in the 1970’s and 1980’s made contradictory appeals to liberals who believed that it would decrease sentencing disparity and restrain the use of imprisonment imposed for reasons of deterrence and rehabilitation and conservatives who believed that it would legitimate the societal demand for meaningful and severe punishment. Restorative justice similarly has contradictory appeals to both those who see it as an onerous form of accountability and reparation for victims and those who emphasize that it is a less coercive alternative to imprisonment and a means to promote the rehabilitation of offenders. It will be important for policy makers to be sensitive to the way that restorative justice develops.

The Supreme Court’s understanding of restorative justice is complex and multifaceted. On the one hand, the Court has revived traditional concerns about rehabilitation and restraint and placed them under the new rubric of restorative justice. This will allow judges to focus on the offender at least in cases where the crime is not so serious as to require a focus on deterrence and denunciation of the crime to others. Another face of restorative justice is harder on offenders. The Court has stressed that restorative sanctions are not easy and may involve shame and stigma as well the obligations to provide reparation to victims. As discussed below, these conditions can be particularly onerous if enforced by means of conditional sentences. Even the focus on rehabilitation may encourage judges to use conditional sentences to respond to offenders’ needs without adequate consideration of the coercion involved or the consequences and likelihood of a breach. The Court’s understanding of restorative justice and its attraction to conditional sentences as an instrument to achieve restorative justice could contribute to net widening, especially if as discussed above, conditional sentences are not used in the most serious cases.

Restorative Justice and Reparation to Victims and the Community

The textual basis for using restorative justice as a sentencing philosophy is ss. 718(e) and (f) of the Criminal Code. The idea of reparation to victims and the community is a fundamental part of restorative justice as the Court understands it, but these provisions are quite ambiguous and the Court has yet to clarify them.

An important issue will be the relative emphasis that is placed on reparation and acknowledgement of harm to victims on the one hand and to the community on the other. The latter can quite easily degenerate into more traditional punitive concerns that focus on the relationship between the offender and the state. In other words the idea of reparation to the community could be collapsed into the more punitive idea that the offender should pay his or her debt to the community through a fine or other sanction.[120]

Another issue will be the emphasis that is placed on reparation contemplated under s.718(e) and acknowledgement of harm and acceptance of responsibility under s.718(f). Many offenders may be in a better position to fulfill the objectives of s.718(f) than s.718(e). There is a danger that reparation in s.718(e) will be defined narrowly as monetary reparation through restitution. In RAR, the Court indicated that a $10,000 payment by an employer to an employee who had been assaulted and sexually assaulted “weighed in favour of restorative objectives and therefore of a conditional sentence”.[121] The Court then indicated that the restorative objective of the compensation “was not so important as to outweigh the need for a one year sentence of incarceration in order to provide sufficient denunciation and deterrence.”[122]

The RAR case raises many interesting questions about the Court’s understanding of restorative justice and the ability of courts to achieve restorative justice. The first is the question of how many offenders would be in a position of the “successful entrepreneur” in RAR to make such a $10,000 reparation payment? When combined with the Court’s decision in Bunn to allow a conditional sentence for a lawyer’s breach of trust[123], this raises the issue of class or socio-economic bias in the use of conditional sentences particularly if reparation is limited to monetary payment. I have argued elsewhere that although reparation is a valuable goal for sentencing, there is a need for a something akin to a fine option programme where less advantaged offenders can have a fair opportunity to make reparation to their victims:

The fine option concept contemplated under s.736 could also be employed in terms of restitution so that an impecunious offender would be allowed to work off a restitution order that was perhaps initially paid by the state to the crime victim. All offenders regardless of class should have opportunities to repair the harm caused to victims. Victim compensation and restitution provisions could be dovetailed so that public funds would be available to top up or front load the monies that an offender could pay by way of restitution.[124]

RAR is intriguing because there were other forms of restoration (apart from the $10,000 in compensation) that might have been tried but were not considered. In this case, the victim was assaulted and sexually assaulted, but she was also subject to degrading taunts in front of others. It is unfortunately not clear what the victim wanted or if she would have been willing to sit down with the offender. What would have happened had there been a conference in which the offender faced the victim and her supporters, acknowledged the full impact of the harms he had caused and made a genuine apology? The Court of Appeal which had ordered the conditional sentence did not devise any such reparative conditions, but simply ordered 100 hours of community service, house arrest and attendance at a sexual offender course. These orders were all focussed at the offender and did nothing for the victim. In her majority decision, Justice L’Heureux Dube observed that “many members of the respondent’s community supported him and tended to deny that the respondent could have committed the offence of which he was convicted.”[125] A carefully structured conference ending in a formal and public apology may have responded to these real concerns and have sent “a sufficiently strong message”[126] to those most directly affected about the unacceptability and consequences of such crimes. The potential of restorative justice was not realized in RAR.

In my view, restorative justice can hold offenders accountable for serious crime and effectively deter and denounce crimes. Nevertheless, it is significant that these options were never really considered in RAR. Even the Court of Appeal which devised a conditional sentence focussed on the offender’s needs and not the victim’s. The Supreme Court’s decision overturning the conditional sentence reflects the idea that only imprisonment will sufficiently denounce and deter serious crimes. It discusses reparation only in terms of monetary compensation and it does not explore the possibility that a properly conducted conference might have acknowledged the harm done to the victim and held the offender morally and socially, not just monetarily, accountable for the harms he inflicted on the victim.

Restorative Justice, Stigma and Shame

Although the Court does not discuss the possibilities of a restorative conference in a case such as RAR, it does engage the controversial idea that one of the features of restorative justice is its use of stigma and shame. The idea of stigma and shame play an important role in academic discussions of restorative justice. On the one hand, John Braithwaite has argued that shame can be an important and positive force, but only if it is exercised in a re-integrative manner.[127] On the other hand, Dan Kahan has argued that shame can have a potent force, but more because it imposes stigma and public humiliation rather than provides a prelude to reintegration.[128]

Where is the Supreme Court on the controversial and emotive issue of shame and stigma? In Proulx, Chief Justice Lamer held that “the stigma of a conditional sentence with house arrest should not be underestimated. Living in the community under strict conditions where fellow residents are well aware of the offender’s criminal misconduct can provide ample denunciation in many cases. In certain circumstances, the shame of encountering members of the community may make it even more difficult for the offender to serve his or her sentence in the community than in prison.”[129] This understanding of shame seems more related to stigmatization than re-integration and caring. It may even inspire some trial judges to impose shaming penalties that rely on public forms of humiliation. These have been popular in the United States and may soon come to Canada.

Other parts of Chief Justice Lamer’s opinion seem more supportive of re-integrative shaming. For examples he comments about the importance of offenders being forced “to take responsibility for his or her actions and make reparation to both the victim and the community, all the while living in the community, under tight controls.”[130] This seems to hold out the possibility not just of shame and stigma but re-integration as the offender accepts responsibility and makes reparation.[131] The Supreme Court’s understanding of the role of shame and stigma is quite ambiguous.

Stigma and shame are inherently social concepts. The Supreme Court also suggests that house arrest and curfews should be routinely used as punitive conditions. Being under house arrest and even being forced to return to your home at a time when people begin to socialize are anti-social interventions. Some forms of house arrest seem designed to isolate the offender from those beyond his or her immediate family. Braithwaite and others would argue that this deprives offenders of some of the more positive influences on their behaviour and is based on an unrealistic view of the “normal environment” to which offenders will eventually return. Not enough is known about the effects of house arrest on women. It is possible that sentencing a male offender to house arrest will increase the danger that his female companion will suffer various forms of abuse.

Restorative Justice and Rehabilitation

Another important feature of the Court’s discussion of restorative justice is that it links restorative justice with the objective of rehabilitating the offender. Restorative justice thus helps revive the idea of rehabilitation which since the Ouimet Commission report in 1969 has been out of favour. Because restorative sanctions rarely will result in imprisonment, the idea of rehabilitation does not have to be tied to the dubious idea that correctional facilities can rehabilitate offenders. The Court has made clear that a conditional sentence that requires an offender to receive treatment for his or her addiction to drugs would be a restorative sanction even though it may not involve victims or surrogate victims in its delivery. The Court’s new enthusiasm for rehabilitation is an important component of its understanding of restorative justice and will require more study.

One danger is that the revived interest in rehabilitation may contribute to net widening. Trial judges may be tempted to impose restorative and rehabilitative conditions on offenders who might not otherwise have been sent to jail because they “need” such conditions. Conditions requiring treatment and education, especially if they are extended over a long period of time, may very well be breached. This is especially true of conditions which require an offender not to possess or drink alcohol. The noble aspirations of restorative justice to respond to the needs of offenders, victims and communities means there will inevitably be failures and false starts. For example, offenders who "need" intensive substance addiction treatment may not complete the treatment. Offenders who “need” anger management or life style training may get mad and not show up for a training session. If a conditional sentence has been imposed, they may quickly be breached and imprisoned for the duration of a sentence that is longer than if they had been imprisoned in the first place. In the enthusiasm for restorative justice, we must be careful not to repeat the mistakes that came from past enthusiasm for rehabilitation.

Restorative Justice and Restraint

The Court has also linked restorative justice with restraint in the use of imprisonment. In Gladue, the Court related the restorative goals of sentencing to data about Canada’s relatively high rate of incarceration and its dramatically high levels of overincarceration of Aboriginal people. Cory and Iacobucci JJ. observed that “the existing overemphasis on incarceration in Canada may be partly due to the perception that a restorative approach is a more lenient approach to crime and that imprisonment constitutes the ultimate punishment.”[132] The idea that restraint in the use of imprisonment is tied to the use of restorative justice and conditional sentences has implications for net-widening. In Wells, the connection between the general and specific principles of restraint in s.718.2(e) and the concept of restorative justice implicit in s.718(e) and (f) became even stronger as Iacobucci J. stated that s.718.2(e) “has a remedial purpose for all offenders, focussing as it does on the concept of restorative justice, a sentencing approach which seeks to restore the harmony that existed prior to the accused’s actions. Again, the appropriateness of the sentence will take into account the needs of the victims, the offender and the community as a whole.”[133] An alternative understanding of restraint would simply be that all alternatives to imprisonment, including many that do not have restorative or rehabilitative objectives, should be used whenever possible.

3.4 Aboriginal Offenders

In Wells, the Court remains committed to the idea in Gladue and s.718.2(e) that the sentencing of Aboriginal offenders requires a different methodology than non-Aboriginal offenders. At the same time, the Court indicates that in most serious cases, the result will be the same. In the case, the Court upheld a sentence of 20 months imprisonment for an Aboriginal offender convicted of sexual assault. James Wells had received a favourable pre-sentence report which recommended a conditional sentence and suggested that he would not be a danger if he could control his alcohol addiction. Nevertheless, the trial judge found that imprisonment was necessary with particular reference to the need to deter and denounce the serious crime of sexual assault. The Supreme Court held that this sentence was not unreasonable.

Iacobucci J. stated: “The more violent and serious the offence, the more likely as a practical matter that the appropriate sentence will not differ as between aboriginal and non-aboriginal offenders, given that in these circumstances, the goals of denunciation and deterrence are accordingly increasingly significant.”[134] This equates the achievement of denunciation and deterrence with the use of imprisonment, something that may be questionable in some of the contexts that Aboriginal people find themselves in. It remains open, however, for individual trial judges to demonstrate how restorative sanctions can deter and denounce particular crimes. As suggested above, in cases such as RAR, a properly conducted restorative proceeding might achieve these aims of punishment as well as ensure that the offender is held accountable and accepts responsibility for his crime.

The Court in Wells did not rule out the possibility that in some cases a sanction other than imprisonment may be justified for serious crimes in large part “because of the community’s decision to address criminal activity associated with social problems, such as sexual assault, in a manner that emphasizes the goal of restorative justice, notwithstanding the serious nature of the offence in question.”[135] Thus in cases such as the Hollow Water Community Holistic Circle Healing where the community has devoted enormous resources to attempting to heal wide-spread sexual abuse, the Court may accept non-incarceration for serious offences. Where there is no extraordinary community intervention, imprisonment may remain the norm for Aboriginal offenders convicted of serious offences.

Wells suggests that the unavailability of treatment and other programmes may be one factor that justifies the use of incarceration in serious cases. The fact that the accused was apparently considered an “inappropriate client” for treatment in the Tsuu T’ina Nation Spirit Healing Lodge because he had been convicted of sexual assault and the lack of specific “anti-sexual assault programs” in his community were factors which justified the sentence of imprisonment.[136] This may place pressure, at least in more serious cases, for programmes to be available. Given the limited availability and capacity of many programmes, this may undermine some of the promise of both Gladue and s.718.2(e). Gladue can be read as mandating all reasonable alternatives to imprisonment even if they do not have a cultural or restorative component and even if Aboriginal specific programmes are not available. Wells, however, can be read as suggesting that in serious cases at least, the community will have to have developed programmes to deal with the crime.

Another potential barrier to the implementation of Gladue is the requirement that conditional sentences not be used if they would endanger the safety of the community. The Supreme Court has indicated that this refers to the risk of any re-offending and the gravity of the damage caused by anticipated re-offending. The Court hints that prior records and breach of court orders may suggest that offenders will not abide by conditional sentences.[137] These factors may make it more difficult for Aboriginal offenders to obtain conditional sentences. At the same time, however, the Court has indicated that courts should consider the ability of conditions to secure community safety. “For example, a judge may wish to impose a conditional sentence with a treatment order on an offender with a drug addiction, notwithstanding the fact that the offender has a lengthy criminal record linked to this addiction, provided the judge is confident that there is a good chance of rehabilitation and that the level of supervision will be sufficient to ensure that the offender complies with the sentence.”[138] Again, much will depend on the programmes that are available in the community as the Court has warned that “if the level of supervision in the community is not sufficient to ensure safety of the community, the judge should impose a sentence of incarceration.”[139]

The ability to keep Aboriginal offenders out of jail in serious cases may depend on the resources available in the community and the ability of trial judges to demonstrate that restorative sanctions will be a proportionate response to serious crimes and will help deter and denounce the crime in the community. In other cases, Aboriginal offenders may be subject to the same net-widening effects as other offenders and perhaps more so. Trial judges may be tempted to impose restorative and rehabilitative conditions on Aboriginal offenders who would not normally have gone to jail. The conditions may be imposed for a lengthy period because of the “needs” of the offender. As the severity and length of the conditions increases, the chance for breach also increases. Aboriginal offenders may be disproportionately subject to be breached and to be breached at an earlier stage of their conditions because of a variety of factors including systemic discrimination in policing and parole. Following the Supreme Court’s presumption in Proulx, trial judges will now be encouraged to require Aboriginal offenders who have breached to serve the rest of their conditional sentence in jail. Given that the conditional sentence may be longer than a jail sentence, this could even increase the over representation of Aboriginal offenders in jail.[140]

Conclusion

Although the Court has not prohibited the use of conditional sentence as a disproportionate response to serious crime for Aboriginal and other offenders, it has suggested that imprisonment will frequently be justified in such cases for reasons of deterrence and denunciation. Whether conditional sentences are used as a real alternative to jail will largely depend on local circumstances including the availability of treatment and restorative justice programmes and the exercise of discretion by sentencing judges and prosecutors.

Although the Court does indicate that conditional sentences should only be used as an alternative to imprisonment, there are real concerns that net widening may continue and unintentionally be increased by the Supreme Court’s recent cases. Offenders will face onerous punitive and restorative conditions for a longer period than if they had been imprisoned. For Aboriginal offenders in particular, this increases the chances for breach. The Court has then created a presumption that offenders who breach conditions should be imprisoned for the duration of the conditional sentence. Contrary to both Parliament and the Supreme Court’s intent, conditional sentences could even increase the imprisonment of Aboriginal and other offenders.


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