Judicial Attitudes to Conditional Terms of Imprisonment : Results of a National Survey

1. Introduction

1.1 Purpose of Survey

There are two ways of understanding judicial reaction to the new sanction. One is through an analysis of case law, and the other is through a systematic survey of trial court judges. The weakness with the case law approach is three-fold. First, only a very small percentage of sentences imposed will be captured by the reporting services. By the time that this survey of judges was completed, approximately 20,000 conditional sentences had been imposed across the country. Second, those that are reported may well be (presumably should be) noteworthy in some respect, and therefore not representative of the majority of conditional sentences imposed.

The remaining weakness with an analysis of reported decisions is that the underlying judicial reasoning has, to a large extent, to be inferred, as the judgement is not usually comprehensive enough to explain all the reasons giving rise to the sanction. Trial judges rarely have the time to write judgements that explain all the relevant factors considered at the time of sentencing. A survey on the other hand, has the advantage of containing direct questions relating to the use of the conditional sentence. This report then, should be read with a view to supplementing any legal analysis based upon reported decisions.

One last issue is worth addressing. Judicial reasoning with respect to section 742 is not static; it is evolving continually, in response to judgements from the provincial Courts of Appeal, emerging socio-legal scholarship, experience with the sanction itself, and, perhaps, public opinion. Judges' use of conditional sentences of imprisonment will also likely be affected by offenders' behaviour: if the breach rate of orders remains low, and public reaction is not overwhelmingly negative, then we are likely to see continued growth in the use of the sanction. Lastly, this chapter was written in the Spring of 1999, when the Supreme Court of Canada is being asked to review six appeals involving conditional sentences (see Campbell, 1999). The Court's reaction to those cases will likely have an important impact on the use of conditional terms of imprisonment at the trial court level. This survey presents a view of judicial reaction approximately 18 months into the conditional sentence regime.

The reaction of trial court judges to the new sanction is critical to understanding how the new sanction is being implemented. This is particularly true since provincial Courts of Appeal have adopted somewhat different positions with respect to the new disposition (Manson, 1998). The purpose of the survey was therefore to explore the experience of trial court judges with conditional sentencing since September 1996.

1.2 Methodology

A questionnaire was developed and pre-tested with a sample of 13 judges in Toronto and Ottawa. The survey included questions exploring the respondent's experience with conditional sentencing, as well as many other issues relating to the administration of the new sanction. Once the questionnaire was ready, it was distributed across the country to all adult criminal trial judges, through their respective Chief Judges and Chief Justices. Respondents were provided with a response envelope, and the questionnaires were returned directly to the Department of Justice Canada. Responses were anonymous, although some judges included letters with additional commentary on the issues raised.

Distribution began in May 1998 and was completed by September 1998. Response rates are critical to any survey. Attempts were made to ensure the largest number of responses. By the time that the data-collection phase had been completed, responses had been obtained from 461 judges, which represent 36% of the total population. This is a respectable response rate for a busy professional sample, and compares favourably with other criminal justice surveys. The last systematic survey of sentencing judges across Canada was conducted in 1986, and generated a response rate of 32% (see Research Staff of the Canadian Sentencing Commission, 1988).

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