The Changing Face of Conditional Sentencing
- 5.1 Introduction
- 5.2 The Supreme Court Speaks
- 5.3 The Foreshadowing
- 5.4 The “Big Five” Cases
- 5.5 The Epilogue
- 5.6 To Be Continued…
Gregory J. Tweney
Counsel, Crown Law Office - Criminal
Ministry of the Attorney General, Ontario
On September 3, 1996, the federal government’s major new sentencing reform bill (Bill C-41) was proclaimed in force. This Bill replaced, in its entirety, Part XXIII of the Criminal Code, which deals with the law of sentencing in this country. This legislation would later be characterized by the Supreme Court of Canada as
“a watershed, marking the first codification and significant reform of sentencing principles in the history of Canadian criminal law”.
One of the most significant changes brought about by this legislation was the creation of the
“conditional sentence of imprisonment”, permitting those who qualified to serve their sentence of imprisonment in the community instead of behind bars. Trial courts would soon embrace this new sentencing option. In just two years, conditional sentences were imposed in nearly 30,000 cases across Canada, for offences ranging in seriousness from theft to manslaughter.
Unfortunately, apart from the statutory criteria, courts had little guidance in determining when it was appropriate to impose a conditional sentence. Appellate courts across the country were in conflict over some of the most basic concepts. By far their greatest struggle was their attempt to give meaning to the statutory requirement that a conditional sentence be
“consistent with the fundamental purpose and principles of sentencing”.
Trial judges and counsel practicing in the criminal courts can now breathe easy. In a recent string of cases, the Supreme Court of Canada has finally stepped into the ring, providing guidance on the proper interpretation and application of the conditional sentencing provisions of the Criminal Code. Although this string of cases includes seven recent judgments (all of which will be discussed in greater detail below), the most significant of these is Regina v. Proulx, released on January 31, 2000. In that case, writing for a unanimous Court, [former] Chief Justice Lamer set out the principles governing the new conditional sentencing regime. The decision in that case will no doubt be the guidepost for any future discussion of conditional sentences in Canadian criminal jurisprudence.
The Supreme Court’s first judgment touching on conditional sentences was in Regina v. Gladue, a judgment rendered on April 23, 1999. In that case, an aboriginal woman was accused of killing her husband in a drunken rage. She pleaded guilty to manslaughter and was sentenced to three years in the penitentiary. The issue in that case was the proper interpretation and application of s. 718.2(e) of the Criminal Code, the principle that all available sanctions other than imprisonment that are reasonable in the circumstances be considered, with particular attention to the circumstances of aboriginal offenders. In the end, the Supreme Court upheld the three-year sentence. Although Ms. Gladue was not eligible for a conditional sentence because her sentence was greater than two years, the case is still an important one in conditional sentence jurisprudence: it provided a early glimpse into the Supreme Court’s thinking on the new sentencing regime as a whole. Indeed, Cory and Iacobucci JJ.A., writing for the Court, took the opportunity to draw some general conclusions about the new sentencing legislation, as a means of providing context to a discussion of the single principle raised in that case. In short, the Court noted that the conditional sentence was Parliament’s response to the alarming (and increasing) rate of incarceration in this country.
Subsequent to Gladue, the Supreme Court granted leave in five cases from different parts of the country, all of which raised the question of how to interpret and apply the new conditional sentence provisions of the Criminal Code. Three cases came from Manitoba, one from British Columbia and one from Newfoundland. The Attorneys General for Canada and Ontario were granted intervener status. The cases were heard together on May 25-26, 1999. Judgment was delivered on January 31, 2000. In the end, the Court was unanimous on the principles which govern the interpretation and application of the new conditional sentence provisions. They were divided, however, on how those principles were to be applied in each case.
(a) The General Principles
R. v. Proulx: This is the Court’s main judgment on the general principles on conditional sentences. The judgment is written by [then] Chief Justice Lamer, for a unanimous Court. The main principles can be summarized as follows:
- The new sentencing legislation (Bill C-41) in general, and the conditional sentence in particular, were enacted both to reduce reliance on incarceration as a sanction and to increase the use of principles of restorative justice in sentencing. The Court pointed to s. 718.2(e) and (f) of the Code as evidence that Parliament intended to expand the parameters of the sentencing analysis for all offenders.
- A conditional sentence is not the same as probation. Probation is primarily a rehabilitative sentencing tool. By contrast, a conditional sentence was intended to be punitive as well as rehabilitative. A conditional sentence should be more punitive than a suspended sentence with probation. To achieve this objective, conditional sentences should generally include punitive conditions that restrict the offender's liberty. Conditions such as curfew and house arrest should be the norm, not the exception.
- Where an offender breaches a conditional sentence, there is a presumption that the offender will serve the balance of his or her sentence in jail. In this way, the consequences for breach distinguish the conditional sentence from a probationary sentence.
- A conditional sentence is not the same as jail. A conditional sentence, even one with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration.
- No offences are excluded from the conditional sentencing regime, except those with a minimum term of imprisonment. There is no presumption in favour of or against a conditional sentence for specific offences.
- The requirement that the judge impose a sentence of imprisonment of less than two years does not require the judge to first impose a sentence of imprisonment of a fixed duration before considering whether that sentence can be served in the community. Instead, a purposive interpretation of s.742.1(a) should be adopted. Judges should first satisfy themselves that neither a penitentiary term nor probationary measures is inappropriate. Once the judge determines that the appropriate range of sentence is a term of imprisonment of less than two years, he or she should then consider whether it is appropriate for the offender to serve his or her sentence in the community.
- A conditional sentence need not be of equivalent duration to the sentence of incarceration that would otherwise have been imposed. The sole requirement is that the duration and conditions of a conditional sentence make for a just and appropriate sentence. Although the Court did not address whether it was appropriate (or legal) to “blend” a conditional sentence with a custodial sentence on a single count, they implicitly sanctioned the imposition of a custodial sentence on one count and a conditional sentence on another count (they did so, of their own accord, in R. v.. R.A.R.).
- The requirement that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence. In making this determination, the judge should simply consider the risk posed by the specific offender, not the broader risk of whether the imposition of a conditional sentence would endanger the safety of the community by providing insufficient general deterrence or undermining general respect for the law. Two factors should be taken into account when assessing the risk posed by the specific offender: (1) the risk of the offender re-offending (ie. the risk of any criminal activity, not just the risk of physical or psychological harm to individuals); and (2) the gravity of the damage that could ensue in the event of re-offence. In some cases, the minimal risk of re-offending will be off-set by the gravity of potential harm should the offender re-offend. In such cases, a conditional sentence is precluded.
- Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2 of the Criminal Code.
- Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community.
- Where a combination of both punitive and restorative objectives may be achieved, a conditional sentence will likely be more appropriate than incarceration.
- A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances.
- A conditional sentence can provide significant denunciation and deterrence. Generally, the more serious the offence, the longer and more onerous the conditional sentence should be. However, there may be some circumstances where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct, or to deter others. In such cases, a conditional sentence will be inappropriate, notwithstanding the fact that restorative goals might also be achieved.
- No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate. The judge should consider all relevant evidence, no matter by whom it is adduced. However, as a practical matter, it will be in the offender's best interests to establish elements militating in favour of a conditional sentence, such as the existence of remorse, or a proposed plan of rehabilitation.
- Sentencing judges have a wide discretion in their choice of the appropriate sentence. They are entitled to considerable deference from appellate courts. Absent an error in principle, failure to consider a relevant factor, or an overemphasis of the appropriate factors, an appellate court should only intervene if the sentence is demonstrably unfit.
(b) The Application of the Principles
R. v. Proulx(8-0): In this case, the 18 year old accused pleaded guilty to dangerous driving causing bodily harm and dangerous driving causing death. After drinking at a party, he decided to drive some friends home in a vehicle that was mechanically unsound. He drove erratically for 10-20 minutes, side-swiping one car and crashing into another. The driver of the second car was seriously injured. One of the passengers in the accused’s car was killed. The trial judge imposed 18 months jail, but the Manitoba Court of Appeal substituted a conditional sentence. In the end, the Supreme Court restored the jail sentence on deference grounds. A custodial sentence was not unfit, nor had the trial judge committed any error that would justify appellate interference.
R. v. Bunn (5-3): In this case, the accused (a lawyer) was convicted of six counts of breach of trust and six counts of theft. In 145 separate transfers, he had converted $86,000 of his clients’ money to his own general account. He was sentenced (prior to the enactment of the conditional sentence provisions) to two years in jail. The Manitoba Court of Appeal reduced the sentence by one day and imposed a conditional sentence. The Crown’s appeal to the Supreme Court was dismissed. A majority of the Court held that the accused was entitled to the benefit of the creation of the conditional sentence. There was no basis to interfere with the Court of Appeal’s decision that the principles of denunciation and general deterrence could be met by a conditional sentence in all the circumstances here.
R. v. R.A.R. (6-2): In this case, the accused was convicted of sexual assault and two counts of common assault, all in relation to one of his employees. The conduct consisted of digital penetration, shoving his fingers up the complainant’s nose, causing bleeding, and dragging her across a gravel driveway. He was sentenced (prior to the enactment of the conditional sentence provisions) to one year in jail for the sexual assault, and to fines for the two assaults, plus three years probation. The Manitoba Court of Appeal allowed his appeal and substituted a global nine-month conditional sentence. A majority of the Supreme Court, however, restored the custodial sentence. They found the sentence to be unfit in light of the gravity of the offences, and the offender’s moral blameworthiness, given the abuse of his position of trust. The majority would have restored the 12 month custodial sentence for the sexual assault, imposed a three month conditional sentence for the two assaults, plus three years probation. Since the sentence had been served, the majority did not decide whether a longer conditional sentence with more restrictive conditions would also have been appropriate.
R. v. R.N.S. (8-0): In this case, the accused was convicted of sexual assault and invitation to sexual touching in relation to vaginal fondling of the accused’s step-granddaughter. At the time of the offences (6-10 years previous), the accused was between 46-50 and the victim was between 5-8. He was sentenced (prior to the enactment of the conditional sentence provisions) to nine months in jail. The B.C. Court of Appeal allowed his appeal and substituted a conditional sentence. A unanimous Supreme Court, however, allowed the Crown’s appeal and restored the nine-month jail sentence on the basis of the gravity of the offence and the accused’s level of moral blameworthiness. The Court noted, in passing, that a nine-month jail sentence was already lenient. In these circumstances, denunciation required the imposition of a jail sentence.
R. v. L.F.W. (4-4): In this historical sexual assault case, the accused was convicted of indecent assault and gross indecency. The victim was the accused’s cousin. The offences took place when she was between 6-12 years old, and involved 10-12 incidents of forced masturbation and fellatio. The accused was sentenced to a 21-month conditional sentence. The Crown’s appeal to the Newfoundland Court of Appeal was dismissed. Because the Supreme Court was equally divided as to the result, the Crown’s further appeal was also dismissed. Lamer C.J. (for one side) would have dismissed the appeal on the basis of deference to the trial judge. L’Heureux-Dube J. (for the other side) held that the objectives of sentencing could not be met in this case by a conditional sentence, citing the strong need for denunciation of sexual
The seventh, and most recent case, is Regina v. Wells. Although the case was heard at the same time as “the big five” cases, judgment was not rendered until February 17, 2000. Like Gladue, the case raised the issue of the application of s. 718.2(e) of the Criminal Code in the context of an aboriginal offender. This time, however, the offender was sentenced to 20 months in jail. He was therefore eligible for a conditional sentence. The case therefore raised the more direct question of how the conditional sentencing provisions should be applied in the context of an aboriginal offender.
Not surprisingly, the Court relied heavily on it the principles it had expressed in Gladue (on aboriginal offenders), and in Proulx (on conditional sentences). To some extent, therefore, Wells is another example of how the general principles surrounding conditional sentences are to be applied in any particular case.
In Wells, the accused was convicted of sexually assaulting an 18-year-old girl at a party while she was either asleep or unconscious from the effects of alcohol. Although there was evidence of vaginal abrasions, there was no evidence of penetration. The accused aboriginal offender was sentenced to 20 months imprisonment. The accused’s appeals to both the Alberta Court of Appeal and the Supreme Court of Canada were dismissed. In the end, Iacobucci J., writing for the Court, found no basis upon which to interfere with the trial judge’s decision to impose a custodial, rather than a conditional, sentence. He re-iterated that restorative justice will generally be the primary objective when sentencing aboriginal offenders, particularly in view of the need to address the problem of over-incarceration of aboriginal offenders in Canadian jails. Nevertheless, he said, while s. 718.2(e) requires a different methodology for assessing a fit sentence for an aboriginal offender, it does not necessarily mandate a different result. Principles such as deterrence, denunciation and separation do not necessarily give way to principles of restorative justice. As a practical matter, particularly violent and serious offences will result in imprisonment for aboriginal offenders as often as for non-aboriginal offenders.
Even with these seven cases, the Supreme Court of Canada has not spoken its final words with respect to conditional sentences. Leave to appeal was recently granted in R. v. Knoblauch, a case arising from the Alberta Court of Appeal’s decision reported at  A.J. No. 377 (QL). In that case, the accused pleaded guilty to weapons dangerous and possession of an explosive substance. Psychiatric evidence adduced at the sentencing hearing established that the accused suffered from a serious mental disorder and was therefore extremely dangerous. The trial judge imposed a conditional sentence of two years less one day, one of the conditions of which is to remain incarcerated at the psychiatric wing of the local hospital until such time as medical professionals determine it is safe to release him into the community. The Crown’s appeal to the Alberta Court of Appeal was allowed, and the sentence was converted to a custodial sentence. At issue on appeal to the Supreme Court of Canada is whether the term “community” in the phrase “endanger the safety of the community” refers to the public in general or whether it can refer to the community in which the offender is serving his conditional sentence (in this case, the local psychiatric hospital). The case was argued on April 17, 2000 and judgment was reserved, so stay tuned…. One would expect that this will be the last time for a while that the Supreme Court considers the conditional sentence provisions of theCriminal Code.
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