The Changing Face of Conditional Sentencing

4. Discovering the Sphinx: Conditional Sentencing after the Supreme Court judgement in R. v. Proulx

4. Discovering the Sphinx: Conditional Sentencing after the Supreme Court judgement in R. v. Proulx[141]

Julian V. Roberts
Professor of Criminology, University of Ottawa

Introduction

After almost four years in which over 40,000 conditional sentences were imposed[142], the Supreme Court of Canada has given some clear directions regarding the use of the new sanction. The unanimous judgement in Proulx[143] addresses four principal questions: (i) what is a conditional sentence of imprisonment? (ii) how should a conditional sentence be constructed? (iii) what is the appropriate judicial response to an unjustified breach of the order? and (iv) for what kinds of offences (and offenders) is a conditional sentence particularly appropriate (or particularly inappropriate)? In this commentary, I shall be concerned with the Court's response to the first three questions. Wherever possible, I shall relate the position taken by the Court in Proulx with the results from empirical research into conditional sentencing to date.

The first question identified above may seem straightforward enough: Section 742.1 of the Criminal Code provides a relatively clear statutory framework, including pre-requisite conditions and exclusions. But the clarity masks a degree of malleability. As the judgement notes: “There has been some confusion among members of the judiciary and the public alike about the difference between a conditional sentence and a suspended sentence with probation”.[144] The Court therefore set out to locate the place that a conditional sentence occupies in the range of sanctions available at sentencing. This exercise necessitated creating a clear distinction between a suspended sentence with probation and a conditional sentence. By distancing the conditional sentence from a term of probation, the Court was compelled to move the new sanction closer to a term of imprisonment served in a provincial institution. In short, after the Proulx judgement, we can expect conditional sentences to become more rigorous, but not, I shall argue, as harsh as some authorities fear.

4.1 The Nature of a Conditional Sentence

Number and Nature of Conditions determines the severity of a conditional sentence

Determining the location of the conditional sentence on a scale of severity is far from easy. By virtue of its inherently labile nature, the onerousness of a conditional sanction of any kind is determined by the nature of the conditions imposed and the judicial response to any subsequent breach of those conditions. For this reason, a conditional sentence is hard to fix on a spectrum of the severity of sanctions.

The onerousness of a prison term is largely determined by its duration (leaving aside for the moment the issue of custody level which will affect the impact on the prisoner). A sentence of one-year in custody is, ceteris paribus, more onerous than a six-month sentence or six months of probation. But whether a six-month conditional sentence of imprisonment is more or less onerous than a twelve-month conditional sentence will depend on the number, nature and intrusiveness of the conditions attached to the two orders. This is just one reason why it is imperative to have good statistical information on the optional conditions attached to conditional sentence orders. Regrettably, at the present, although the number of conditional sentence orders imposed to date is available[145], Statistics Canada does not collect information on the nature of conditions attached to the orders.

Conditional sentence is a hybrid sanction, unlike any other

Conflicting interpretations of the nature of a conditional sentence have been advanced since the sanction was created in1996. For some it is a restorative, community-based alternative to imprisonment. Others have adopted a more conservative interpretation, and regard the new sanction as a form of imprisonment (and therefore a sanction with a punitive element) which is served in the community, much as parole is a form of imprisonment even though the prisoner is not actually confined to a correctional institution.

Chief Justice Lamer makes it clear in Proulx that a conditional sentence is a hybrid disposition, which carries punitive and restorative elements. The judgement notes that the conditional sentence “will generally be more effective than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and community, and the promotion of a sense of responsibility in the offender. However, it is also a punitive sanction capable of achieving the objectives of denunciation and deterrence (emphasis in original).[146]

Like most hybrids, this confluence of characteristics makes the sanction hard to characterise: is the Sphinx a lion with human features or a man infused with leonine characteristics? Was the centaur more horse than man? At the same time, the hybrid nature of the conditional sentence makes it a supple disposition, which can be used (if properly constructed, see discussion below) for a wide range of offenders.

The judgement in Proulx makes it clear then that a conditional sentence must have a punitive element. The reason for this is that unlike probation or other community-based punishments, a conditional sentence is a term of imprisonment, and as such should serve the function of a term of custody. In order to match the penal value of imprisonment, the conditional sentence must perforce share at least some of the characteristics of custody (such as tight restrictions on the offender’s lifestyle).

Neither punishment nor restoration carries primacy in a conditional sentence

The fact that a conditional sentence must carry a punitive element does not mean that it is a punitive sanction with secondary restorative characteristics, as some writers have suggested[147], anymore than Centaurs could be described as “primarily” men albeit ones with equine bodies. While it is true that the Court stresses that each conditional sentence must carry a punitive element, this is a long way from saying that a conditional sentence is primarily punitive. Indeed, the Chief Justice is careful to avoid according primacy to punitive or restorative elements. The clearest statement can be found in the judgement’s summary, which simply notes that “Parliament intended conditional sentences to include both punitive and restorative aspects”.[148] This can be taken as a rejection of any attempt to privilege one aspect over another.[149] At the end of the day, whether a particular conditional sentence is primarily restorative or primarily punitive will depend on the nature of optional conditions imposed.

Origin of Court’s interpretation to be found in original construction of the sanction

The Court's interpretation of section 742 takes us back to a dilemma confronting the architects of the sentencing reform of 1996. The sanction introduced by Bill C-41 could have been called by another name. If the conditional sentence had been defined as "enhanced probation supervision", or "intensive community punishment", or some similar construction, then there would have been no necessity to invest the disposition with a punitive element. The debate over whether a conditional sentence is a term of custody or not would have been avoided. But creating an alternative along these lines would have carried a clear danger. There would be no guarantee that judges would use the new sanction in place of, rather than in addition to, sentences of imprisonment. In order for the conditional sentence to achieve the goal set by Parliament of reducing the number of custodial sentences, the sanction must be used as a replacement for, and not an addition to imprisonment. And, as a replacement, it needs to convey the same, or nearly the same penal value.

Section 742.1 makes it clear that prior to imposing a conditional sentence, the court must have decided to impose a term of imprisonment.[150] If judges respect this direction, it follows that every offender sentenced to a conditional sentence is an individual that would have been sent, prior to the inception of conditional sentencing, to serve a term of custody in a provincial institution. Research suggests that this is not what has transpired; it would appear that many of the conditional sentences to date have been imposed on offenders who would have received probation. Otherwise, how can we explain the fact that over 40,000 conditional sentence orders have been handed down, and yet the provincial incarceration rate has not declined?[151] By naming the new sanction a term of imprisonment, the federal Department of Justice created a disposition that the Court would have to characterise as partly punitive in nature, because it is a form of imprisonment.

Having clarified the nature of the conditional sentence, the Chief Justice in Proulx proceeds to resolve a number of issues relating to the imposition of a conditional sentence. These are practical questions such as whether a conditional sentence may be longer than the sentence of custody that it replaces. After Proulx, judges should have a much clearer idea of the nature of a conditional sentence, and should be better equipped to use the sanction. This is just as well, since the judgement also contains a ringing endorsement of the principle of deference to the trial judge. This will surely amplify the autonomy of the trial courts with respect to sentencing.

4.2 Changes to the practice of Conditional Sentencing

The changes wrought by the judgement in Proulx affect three features of the conditional sentence: Duration, Conditions and Breach. I shall briefly review the likely impact of the changes with respect to these three issues.

a) Duration: A conditional sentence may now be longer than the term of custody it replaces

Having established that a conditional sentence is not, in most cases, the penal equivalent of a term of custody, it was inevitable that the Court would reject the one-to-one correspondence between a conditional sentence order and the term of conventional custody that is replaced.[152] Indeed, some judgements in the case law, as well as scholarly articles had already advocated as much, and section 742 in no way excludes the possibility of making a conditional sentence longer.

However, it is worth noting that the judgment does not require judges to prolong the duration of a conditional sentence beyond the term of custody that would have been imposed; it simply permits the former to exceed the latter. The key passage is the following: “When a judge decides that a term of imprisonment of “x months” is appropriate, it means that this sentence is proportional. If the sentencing judge decides – in the second stage – that the same term can be served in the community, it is possible that the sentence is no longer proportional to the gravity of the offence and the responsibility of the offender” (emphasis added).[153]

In many, perhaps most cases, the conditional sentence order will remain in the range that would have been imposed had the offender been sentenced to custody. Nor does the judgement envisage a crude two or three for one ratio as has been suggested for crediting pre-trial custody. The judgement is also sensitive to the relationship between the onerousness or intrusiveness of the conditional sentence order, and the length of the sentence. The imposition of a conditional sentence order carrying a number of punitive conditions that restrict the offender's freedom to a high degree would surely obviate the need to prolong the duration of the order. Indeed, the closer the conditions approximate the severity of detention in a correctional facility, the more likely it is that the duration of the conditional sentence will mirror the duration of the custodial term that would otherwise have been imposed.

Trial judges will be mindful, when determining the length of the conditional sentence order, that an unjustified breach will probably result in committal to custody (in light of the judgement’s direction with respect to breach -- see below). Imposing an 18-month conditional sentence order in place of a six-month term of custody in a correctional facility may well place great pressure on the offender and provoke a breach of the conditions. As well, since the number and onerousness of optional conditions have been increased, uncoupling the duration of the order from the duration of custody is unlikely to have a huge impact on the average duration of orders imposed. For a variety of reasons then, we certainly shall not witness a doubling or tripling of conditional sentence lengths, although the average length of orders may increase. Finally, the limited statistical evidence on this issue suggests that the Proulx judgement is simply recognizing what has often transpired at the trial court level (in Ontario at least): the lengths of conditional sentence orders in the pre-Proulx period were significantly longer than terms of custody imposed for the same offence.[154]

b) Nature of Conditions Imposed

Conditions imposed will be more numerous and more punitive

It is in the area of optional conditions that the Proulx judgement has attracted the sharpest criticism from legal academics. Having established that a conditional sentence must be more punitive than probation, the Court specified the ways in which this could be achieved: “conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest or strict curfews should be the norm, not the exception”.[155] And further: “There must be a reason for failing to impose punitive conditions when a conditional sentence order is made.”[156]

The general result of the Court's direction is that the optional conditions attached to conditional sentence orders should be quite onerous. The Court did not have the benefit of empirical research into the number and nature of conditions imposed, but the limited evidence available suggests that curfews and house arrest (in Ontario at least) have been imposed in a minority of conditional sentences imposed to date.[157] There is of course a reason for the reluctance of trial judges so far to order the offender to remain at home after a specified time of day. Unless adequate supervisory resources are available, a curfew cannot be verified, and unverifiable conditions will invite violation and attract further media attention and public criticism. Electronic monitoring solves the problem of verification, but it is not an option available in most jurisdictions across Canada. By making it clear that house arrest or a strict curfew should be the norm, and not the exception, the Court in Proulx has sent an unequivocal message to provincial governments: in order to work, the sanction must be supported by adequate resources.[158] We can only hope that the message has been received, and will be acted upon.

c) Judicial Response to Unjustified Breach

Incarceration following proven breach of conditions will become the norm

Section 742.6(1) provides judges with considerable discretion in terms of responding to unjustified breaches of the conditions of a conditional sentence order. They may commit the offender to custody for the remainder of the sentence, commit for some portion of the remainder, do nothing, or amend the optional conditions. Given this wide range of options, it is not surprising that the Court offered some advice as to the exercise of discretion. The message in Proulx could not be clearer: “[W]here 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”.[159] In short, the Court recommended adopting the most severe of the options available to a court after an unjustified breach has been established.

However, the impact of Proulx on the question of judicial response to breach may be less drastic than some commentators have suggested. Although the Chief Justice made it clear that committal for the duration of the order should be the norm, by definition there will be many exceptions to this rule. In addition, nothing in Proulx undermines the discretion of the trial judge with respect to breach; the court still has the same options of amending the optional conditions, or simply returning the offender to the community. As well, the increase in the number (and the onerousness) of the optional conditions imposed may work to counter the presumption in favour of committal to custody following a breach. Being practical individuals, judges may not wish to incarcerate an offender for an unjustified breach of a single condition (particularly a minor one), when the individual has successfully respected all the other optional and compulsory conditions.

Finally, it is also possible that conditional sentence supervisors may respond to breach allegations with more indulgence than in the Pre-lProulx era. There are two reasons for this. First, probation officers will be aware that the optional conditions imposed upon offenders serving conditional sentences have become more numerous and more onerous. Second, if conditional sentence supervisors believe that a proven breach will almost certainly result in the incarceration of the offender, they may be inclined to exercise their discretion with respect to invoking the intervention of the state, and turn a blind eye to a violation of the less substantive optional conditions.

4.3 Relationship between duration, conditions and response to unjustified breach

To summarize, conditional sentence orders will likely become more onerous, somewhat longer and breaches will be treated with more severity than in the pre-Proulx era. It is important to note that there is a coherence to the Court's direction in these three areas: the conditions imposed as part of conditional sentence orders will become more onerous, but this may obviate the need to prolong the duration. On the other hand, if minimal conditions are seen to be appropriate, extending the duration of the order will help to preserve the principles of proportionality and parity in sentencing.[160] And while judicial response to a proven breach of conditions may become more rigorous, judges retain the discretion to amend the conditions (perhaps by lending more structure to the offender's life) and to return the offender to the community to continue serving his sentence.

One last comment is in order with respect to the "toughening" of the conditional sentence regime laid down in Proulx. Critics of the judgement might argue that imposing more (and stricter) conditions constitutes a marked (and gratuitous) departure from judicial practice to date. But this analysis assumes that the kinds of conditional sentences imposed by trial judges to date were "correct". And that is a matter open to debate. It is only in light of the fact that many conditional sentence orders have resembled slightly tougher probation orders (in terms of the optional conditions imposed[161]) that the Proulx judgment appears "tough". Had the judgement been handed down in January 1997, before trial judges had imposed many conditional sentence orders, the direction taken by the Supreme Court may have attracted more support from advocates of conditional sentencing.

Let us briefly pursue the Proulx directions to trial judges in light of this analysis. Consider an offender sentenced to one year in prison, and who then is allowed to serve the sentence in the community (provided he or she abides by a number of conditions). Let us suppose that after six months, she wilfully and without justification violates those conditions. Assuming that the conditions were not unreasonable to begin with, and that the offender was supervised appropriately, is it excessively harsh of the State to commit the individual to custody for some portion of the unexpired term?

Or consider the Court’s direction that calls for the imposition of a curfew as an optional condition in most conditional sentence orders.[162] Take, for example, the case of an offender who otherwise would have been confined in a provincial correctional institution. Such an offender would be unable to leave the institution and be subject to many intrusions into his liberty, including fixed meal and visiting times, unpredictable cell searches, and a host of institutional rules, the violation of which may result in harsher treatment and the possible deferment of conditional release. The use of a conditional sentence will permit the offender to serve the sentence in the community, at home. Is it unreasonable to require the offender to remain at home after, say, eight in the evening? The offender’s rayon d’action remains considerable relative to that offered in the institutional setting.

Justifying the Changes to Conditional Sentencing

The changes to conditional sentencing recommended by the Court are important because they remind judges of the point of departure for the imposition of any sentence: the statement of the purpose and principles of sentencing found in sections 718-718.2 of the Code. Section 718.1 lies at the heart of that statement. The principle of proportionality is central to the sentencing process in Canada and other common law jurisdictions. Indeed, the principle permeates the case law, as well as popular conceptions of justice. As Rosenberg J.A. noted in R. v. Priest, “[t]he principle of proportionality is rooted in notions of fairness and justice”.[163] Any ambiguity about the primordial role of proportionality should have been dispelled when Parliament codified the principle and designated it as “fundamental". The changes with respect to section 742 advocated by the Court have the effect of moving the conditional sentence further from a term of probation (and closer to a term of custody). The benefit of this direction is that it will help to preserve the principles of proportionality and parity in sentencing, both now codified in Part XXIII.

Proportionality requires that the severity of sanctions imposed comport with the seriousness of the crime, and to a lesser extent, the culpability of the offender. If a conditional sentence with minimal conditions is imposed in a case that would otherwise have resulted in custody, the principle of proportionality is violated. Similarly if comparably-situated offenders receive respectively, a term of provincial custody and a conditional sentence of equal duration and carrying few optional conditions, then the principle of parity is violated. The Court's direction with respect to section 742 is therefore consistent with the statement of the purpose and principles of sentencing found in sections 718-718.2.

4.4 Effects of the Proulx judgment on the number of conditional sentences imposed

At the end of the day, the critical question is whether the Supreme Court’s direction will lead to an increased or decreased use of conditional sentences. If the number of conditional sentences imposed declines, this will spell the end of the sanction as a tool to reduce the use of incarceration. After all, the current level of usage has, as noted, failed to lower the percentage of sentences involving custody.[164] Some commentators are pessimistic about the impact the Proulx judgement will have on the use of the conditional sentence. Allan Manson, for one, argues that there will be fewer conditional sentences imposed.[165]

For my part, I am unconvinced, for two reasons, that the judgement will have the chilling effect on trial judges predicted by Professor Manson. First, many trial judges were, before Proulx, unconvinced that a conditional sentence could adequately convey a message of deterrence or denunciation.[166] The Court has addressed this skepticism, and provided practical guidance as to how this message may be achieved, even for serious cases in which statutory aggravating factors are present. Second, the Court has provided a ringing endorsement of the concept of deference to the trial judge.[167] As Rosenberg, J.A. has noted: “there seems no doubt that the Supreme Court has instructed the appellate courts to draw back from what the Supreme Court obviously perceived as excessive appellate interference in the sentencing function”.[168] This may embolden judges to become more creative in the construction and imposition of conditional sentences.

4.5 Conditional sentencing and public opinion

Community reaction to conditional sentencing is an issue that will not go away. Indeed, it has become more, not less important as a result of the judgement in Proulx. Why are the views of the public relevant? One answer can be found in the fundamental purpose of sentencing articulated in section 718 of the Criminal Code, which states that “[t]he fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law (emphasis added). When a conditional sentence is imposed with minimal conditions and for a personal injury offence, the public is likely to perceive it as little different from a term of probation, and as further evidence of leniency in sentencing. If this occurs, respect for the sentencing process will be undermined. There is clear evidence that the news media have reported a number of conditional sentences in a way that can only inflame public opposition to the conditional sentence.[169]

The issue of public reaction is taken up by the Chief Justice as a reason why a conditional sentence must be more severe than, and clearly distinguishable from, a term of probation:

If a conditional sentence is not distinguishable from probation, then these offenders will receive what are effectively considerably less onerous probation orders instead of jail terms. Such lenient sentences would not provide sufficient denunciation and deterrence, nor would they be accepted by the public. Section 718 provides that the fundamental purpose of sentencing is “to contribute….to respect for the law and the maintenance of a just, peaceful and safe society.” Inadequate sanctions undermine respect for the law. Accordingly, it is important to distinguish a conditional sentence from probation by way of the use of punitive conditions.[170]

Public opposition to conditional sentencing is often overstated

Before proceeding further, it is worth noting another important way in which the judgement in Proulx mirrors the results of empirical research. In 1999, a national survey of Canadians explored public reaction to conditional sentencing.[171] People were asked to choose between two sentences that might be imposed on an offender convicted of break and enter. Respondents were asked to answer one of two versions of the question. In version “A”, participants were asked to consider a case in which An offender is to be sentenced for the crime of breaking into a hardware store and stealing $1,500. He has committed similar offences in the past.” They were further told that The judge is trying to decide between a 6-month prison sentence, or 6 months to be served in the community as a conditional sentence of imprisonment.”

The second group of subjects were given the identical description, but some optional conditions were noted. Respondents were told that “If the offender receives the conditional sentence, he will have to remain at home every night after 7. p.m., and on weekends. As well, he will have to pay back the money he stole, perform some community work and report to authorities twice a week for 6 months.” The second condition, with its curfew and more rigorous reporting conditions corresponds closely to the directions regarding a conditional sentence provided in the Proulx judgement. That is, it is clearly more onerous than a term of probation which would not carry so many conditions.

The results dramatically supported the experimental hypothesis. In the absence of any mention of the optional conditions, the public supported the imposition of a prison sentence over the conditional sentence by a ratio of almost 3:1 (72% favoured incarceration, 28% the conditional sentence). When the conditions of the order appeared in the description, the pattern of results was a complete reversal: now only 35% of respondents supported incarceration, 65% the conditional sentence. The lesson would seem clear. The addition of onerous conditions such as frequent reporting and curfews confers two benefits: (a) it clearly distinguishes a conditional sentence from a term of probation, and (b) it promotes public support of the sanction.[172]

There is a second, perhaps less principled way in which, according to the Proulx decision, trial judges should consider the views of the community. It relates to the emphasis placed on deference to the trial judge. As noted, the Court reiterated the position taken in R. v. M.(C.A.)[173] that a trial judge was far better placed than appellate courts to devise an appropriate sanction. The reason for this is that a sentencing judge still enjoys a position of advantage over an appellate judge in being able to directly assess the sentencing submissions of defence and Crown counsel, to accurately assess the seriousness of the offence, and to relate the specific case to others.

However, there is an additional direction in Proulx with respect to the role of the community that emerges not from the guideline body of the judgment, but in the application to the facts of the case that gave rise to the specific appeal. The judgement notes that “trial judges are closer to their community and know better what would be acceptable to their community (emphasis added).[174] This seems to suggest that public acceptability has a role to play in terms of whether a conditional sentence is imposed, and also in the specific terms of the conditional sentence.[175]

If trial judges interpret this direction in this way, it can only have deleterious effects. The degree of variation in terms of the use of conditional sentence will surely increase. In addition, the position taken by the Court assumes that because trial judges live in a particular community, they are able, absent any formal mechanism, to discern whether a particular conditional sentence will prove acceptable to the public. Judges have no special insight into the tenor of local public opinion. Indeed, it can be argued that their professional experiences render them less able to know whether, for example, imposing a conditional sentence for a serious personal injury offence is likely to prove unacceptable to the community.

Renaud J. makes the point crystal clear in his paper in discussing the role of community sentiment: “On the assumption that I can actually take these feelings into account, the question remains: how do I gauge the pulse of the community? Do I read the media reports, listen to on-air talk shows, or is there a website to be consulted? Are my neighbours representative of the community?” [176] Even local politicians or newspaper editors, who, it might be argued, have more contact with members of the public, have no systematic way of establishing the limits of public acceptability.

To summarize, a conditional sentence without punitive conditions may well attract public criticism, particularly if it is imposed for a serious personal injury offence. People are likely to perceive such a sanction as another form of probation. The judgement in Proulx has addressed this general concern in its directions regarding the construction of a conditional sentence, and the appropriate judicial response to breach. However, to further argue that trial judges should contemplate community reaction when considering a conditional sentence is in my view a most retrograde step, fraught with dangers. It may introduce an unwelcome element of populism into sentencing decisions and can only exacerbate the problem of unwarranted sentencing disparity.

4.6 Transforming the penal landscape

If we wish to effect a transformation in societal response to offending from one which emphasizes punishment to one which favours restorative measures, we have to recognize that this transformation is likely to be gradual. The conditional sentence may well serve as a useful judicial tool with which to promote this transformation, but it is not a device that is going to rapidly revolutionize sentencing. The movement towards a more restorative response to crime will not occur overnight, nor will it occur without some resistance. In order to convince members of the judiciary, and indeed the community at large of their value, restorative initiatives must be both plausible and workable.

If the sentencing system wishes to replace imprisonment as a sentencing option (except for offenders who pose a significant danger to the community), it must offer a substitute that performs the functions of incarceration without necessitating the detention of the offender. A sentence of imprisonment has limited utility in terms of deterrence, and none at all in terms of restoration or rehabilitation. But for denouncing culpable criminal conduct, for expressing censure, custody has no peer. That said, there is, however, no natural connection between prison and censure; rather, it is simply an association that has arisen over centuries.

The link between prison and punishment in the public mind will surely change. Indeed, it is changing already. There used to be an equally strong relationship between deterrence and imprisonment. When physical punishment and public executions were replaced by terms of imprisonment, it was argued that the fear of a sustained period of custody was necessary to deter potential offenders. The limits on the deterrent efficacy of imprisonment have been acknowledged by Commissions of Inquiry[177], appellate courts[178], as well as by academic commentators.

In the future we shall be able to censure blameworthy conduct in ways that do not entail the separation of offender from his or her community. This will be accomplished even for serious personal injury offences. The key lies in the systematic development of penal equivalences, a subject to which Judge Cole has recently drawn our attention.[179] Once community-based “equivalent” sanctions are accepted, imprisonment will become a very rare sanction[180], one imposed exclusively for the protection of society, in a way that civil orders are rarely invoked in order to quarantine individuals who pose a health risk to the community. We will incarcerate offenders primarily to protect, seldom to denounce. In the short term, a more modest goal might consist of the erosion in the use of custodial sentences. And that is the function of the conditional sentence of imprisonment.

The contribution of the conditional sentence to a more community-based sentencing process then is clear: it will promote public and professional acceptance of the concept of punishment in the community. To this end, the judgement in Proulx may well have a critical role to play. Chief Justice Lamer made it quite clear that a conditional sentence can, if properly constructed and administered, achieve the goals of denunciation and deterrence. This may be obvious to advocates of restorative justice and related initiatives, but for many criminal justice professionals, and not a few members of the community, the message may come as a surprise.

Conclusions

In 1996, Parliament created the conditional sentence of imprisonment with the express intention of reducing the number of admissions to provincial custody in a safe and principled way.[181] Four years later, research suggests that that intention has yet to be fulfilled. The judgment in Proulx, although criticized by some writers for converting a restorative sanction into a punitive one, may well represent an important step towards realizing Parliament's intention. Conditional sentences will in all probability become somewhat longer and somewhat more onerous. As well, offenders can expect a more rigorous response from courts in the event that they breach conditions of the order without reasonable excuse. But the judgement is not simply about making a community-based sanction tougher. It is about "finding a place" for the new sanction, and articulating the way in which the sanction should be imposed.

Of course, many issues remain to be resolved, and some worrying questions remain:

Will the substantial deference to trial court judges endorsed in Proulx[182] result in even greater disparity than existed before the guideline judgement?

The standard of review has clearly been raised as a result of the Proulx judgement. The Chief Justice makes the point repeatedly: “Again, I stress that appellate courts should not second-guess sentencing judges unless the sentence imposed is demonstrably unfit [183] (emphasis added). How often are appellate courts likely to be asked to review sentences in light of this direction? It is ironic that a guideline appellate judgement will likely have a chilling effect on the number of sentences appealed, and will thereby diminish the role of appellate courts in guiding sentencing practices.

In 1985, Professor Alan Young reviewed the role of appellate courts in guiding sentencing practices for the Canadian Sentencing Commission. He concluded that “Not only do lower courts disregard appellate principles but the lower courts exhibit some hostility to the entire concept of being guided by appellate courts in sentencing matters.[184] Over a decade later, the independence of trial judges has been enhanced still further. The result will inevitably be more disparity in sentencing. Speaking of this issue, Vancise, J.A. wrote the following words which may prove to be prophetic: “This deferential approach to sentence appeals is apt to produce more individualized sentences and consequently apt to produce a wider disparity of sentences”.[185]

Will the federal government resist the political pressure to introduce a schedule of offences for which a conditional sentence would not be a legal penalty?

A private member’s Bill introduced last year calls for an amendment to section 742.1 to exclude 28 personal injury offences and several drug offences from eligibility for a conditional sentence.[186] Similar proposals have been advanced by other politicians. It is curious that there is so much discussion of schedules after Parliament and the Supreme Court have both rejected the concept. Introducing a schedule of excluded offences would, in my view, undermine the original intention of Parliament as well as constituting an affront to the Court and an expression of non-confidence in trial judges.[187]

The future of Conditional Sentencing: Importance of Investing in Supervision and Research

With the original statutory framework now amended (twice) and a unanimous guideline judgement from the Supreme Court of Canada, the scene now shifts to the practicalities of sentencing in trial courts across the country. Trial judges will attempt to strike a balance between implementing the guidance from the Court and placing a number of conditions on offenders serving conditional sentences that renders breach of the order probable rather than possible. The preliminary evidence on conditional sentence order breach rates (pre-Proulx) from one province (British Columbia) is discussed in another chapter in this report, and the results are not encouraging. In her research, Dawn North reports a breach rate of nearly half the orders imposed, and this in the pre-Proulx era.[188] We can expect the breach rate to rise somewhat following the judgement in Proulx, as a result of the fact that more (and more onerous) conditions will be imposed.

In terms of the ultimate success of the sanction, the critical question is whether the provincial governments will provide their probation services with the necessary resources to adequately supervise offenders serving conditional sentences in the community. But that is a question for another day.


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