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


Table 2.1 provides a breakdown of the province or territory in which the respondent served. As can be seen, over half the responses came from three provinces, Ontario (30% of total); Quebec (16%) and Alberta (12%).

Table 2.1: Province/Territory of Respondent
Province/Territory Number % of Total
Ontario 134 30.1
Quebec 69 15.5
Alberta 51 11.5
British Columbia 50 11.2
Manitoba 33 7.4
Saskatchewan 25 5.6
New Brunswick 21 4.7
Nova Scotia 20 4.5
Newfoundland 16 3.6
Yukon 5 1.1
PEI 4 0.9
NWT 3 0.7
No response ** 14 3.1
Total 445 100

** Refers to no identification of jurisdiction on questionnaire

2.1 Use of Conditional Sentences to Date

Since the survey was conducted less than two years after the inception of the new sanction, it is perhaps not surprising that almost half the sample (45%) had imposed fewer than 10 conditional sentences. One-fifth (21%) had imposed between 11 and 20 conditional sentences, and one quarter had imposed more than 20. A small number of respondents (50 or 7%) had imposed more than 50 orders. Only 6% of the sample had not imposed a conditional sentence to date (Table 2.2).

Considerable regional variation in volume of orders

There was considerable variation across the country in the use of conditional sentences. In Alberta for example, only 30% of respondents had imposed 11 or more orders, while in neighbouring Saskatchewan, 61% of respondents reported having imposed 11 or more. Comparisons between Ontario and Quebec make a similar point: in Quebec, almost three-quarters of respondents were "high users" of conditional sentences (11 or more) compared to only a third of Ontario judges. The complete breakdown of usage by province/ territory can be seen in Table 2.2.

Table 2.2: Number of Conditional Sentences Imposed by Province of Respondent
Province or territory: Number of conditional sentences imposed:
None 1-10 11-20 21 or more Total
NF 6.3% 43.8% 12.5% 37.5% 100% (16)
PEI   75.0% 25.0%   100% (4)
NS   55.0% 30.0% 15.0% 100% (20)
NB 4.8% 23.8% 33.0% 38.1% 100% (21)
QC 8.5% 19.7% 25.4% 46.5% 100% (71)
ON 7.4% 55.1% 15.4% 22.1% 100% (136)
MN 15.6% 56.3% 15.6% 12.5% 100% (32)
SK 3.2% 35.5% 29.0% 32.3% 100% (31)
AB 5.7% 64.2% 18.9% 11.3% 100% (53)
BC 63.5% 21.2% 15.4% 100% (52)
YK 20.0% 60.0% 20.0% 100% (5)
NWT   100.0%     100% (3)
Total 6.1% 48.4% 20.9% 24.5% 100% (444)

Note: Percents in italics are based on a very small sample size.  For this and all subsequent tables, the numbers of cases on which the percents are based are indicated in parentheses.

2.2 Objective of the Conditional Sentence of Imprisonment

Reducing the use of Imprisonment was seen as the most important objective of conditional sentences

In response to an open-ended question, over half the judges identified reducing imprisonment or providing a cost-effective alternative to prison as their understanding of the single most important objective of the new sanction. Promoting the rehabilitation of the offender was identified as the most important objective by a further quarter of the sample. It is interesting to note that slightly more than one judge in ten viewed conditional sentencing as an intermediate sanction.

Section 742 expressly identifies a conditional sentence as a replacement for a prison term, (and not a disposition to lie between probation and prison). However, these judges appear to have adopted a somewhat different interpretation of the provision, viewing a conditional sentence as both an alternative sanction and an intermediate sanction. (Table 2.3).

Table 2.3: Most Important Objective of Conditional Sentence
What do you consider to be the single most important objective of conditional sentences? (Q2)
Response Percent of judges giving this response
Reduce imprisonment 32.2%
Provide a more cost effective alternative than prison 24.2%
Provide another intermediate sanction 10.7%
Respond to the offender: rehabilitation, reintegration, employment, etc. 27.3%
Other 5.7%
Total 100% (422)

Note: We are reporting only the first objective mentioned; some judges mentioned more than one

2.3 Most appropriate offences for consideration of a conditional sentence

Property crimes seen as the offences for which a conditional sentence is most appropriate

Judges were asked whether they could identify any offences for which a conditional sentence was particularly appropriate. The results are summarized in Table 2.4. Of the total sample of 444 judges, 423 responded to this question, and of these, approximately two-thirds (64%) cited one or more property offences. One quarter chose the option that there are no offences for which the new disposition is particularly appropriate. Eight percent of respondents said that they would consider imposing a conditional sentence for a crime of violence; in these cases they had in mind only the less serious incidence. Section 742 does not identify any particular offence or offence category. However, responses to this question may suggest that judges interpret the question of risk to the community as one, which turns largely on the nature of the offence. Property offenders are generally perceived as being less of a threat to the safety of the community, which makes them particularly appropriate for a conditional sentence of imprisonment.

Table 2.4: Most Appropriate Offence for Conditional Sentence
Is there any kind of offence that you believe is particularly suited to a conditional sentence? (Q3a)
Response Percent of judges giving this response
There are no particular offences that are especially suited for a conditional sentence 26.2%
One or more violent offences (mostly "minor") was listed 7.6%
One or more property offences was listed 57.0%

Note: We have coded “violent” and “property” offences independently; hence a judge could have mentioned both.

2.4 Effectiveness of Conditional Sentence

Conditional sentence seen as effective as imprisonment in achieving rehabilitationbut not deterrence or denunciation

An important question emerging from the appellate case law to date is whether the conditional sentence can be as effective in achieving the goals of sentencing as the term of imprisonment that it replaces. Several provincial courts of appeal have asserted that this can be the case in an appropriate fact situation. (e.g., R.v.BiancoFiore). Trial judges were asked whether a conditional sentence can be as effective as imprisonment in achieving: proportionality, denunciation, deterrence, rehabilitation and reparation. As table 2.5 indicates, respondents clearly felt that the conditional sentence is more effective in achieving some goals than others. Almost three-quarters (72%) of the sample believed that the conditional sentence was "always" or "usually" as effective as imprisonment in achieving rehabilitation. However only approximately one-third believed that this was true for deterrence, or denunciation. A quarter of the judges surveyed were of the opinion that a conditional term of imprisonment was never, or almost never as effective as conventional imprisonment in achieving deterrence (Table 2.5).

Table 2.5: Effectiveness of Conditional Sentence
Can a conditional sentence be as effective as imprisonment in achieving…
Judge responded it can be as effective… Proportionality Denunciation Deterrence Rehabilitation Reparation
Always/ Usually 51.1% 35.3% 34.7% 71.7% 59.2%
Sometimes 33.6% 33.0% 40.9% 23.8% 30.7%
Almost Never/Never 15.3% 31.7% 24.4% 4.4% 10.1%
Total 100% (450) 100% (448) 100% (450) 100% (449) 100% (443)

Judges with more experience with conditional sentencing tend to have more positive views of the new sanction

We also explored the perceptions of judges as a function of their experience with conditional sentences. The sample was classified into three groups: those who had not imposed any conditional sentences to date, those who had imposed a few (operationally defined as between one and 10) and those who had imposed at least 11 such sentences. The first of these analyses reveal that judges who have imposed a significant number of conditional terms of imprisonment (11 or more) are more optimistic about the ability of the sanction to achieve proportionality, denunciation or deterrence.

For example, with respect to proportionality, almost two-thirds of the high-usage judges responded that conditions could be set which would make a conditional sentence as effective as a conventional prison term. In contrast, only 17% of the group who had never imposed a conditional sentence held this view. The low usage group fell in between these extremes. The same is true for the other sentencing objectives.[1]

[1] It is important to note that these are correlational analyses. We cannot establish whether experience with the sanction has changed judges' perceptions, or whether different perceptions of the new sanction lead judges to use the disposition more (or less) often.

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