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

2. Results (cont'd)

2.5 Impact of a Conditional Sentence

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.

One third of judges see a conditional sentence as having same impact as a probation order with the same conditions

Some light on responses to the effectiveness question is shed by responses to another. Respondents were asked whether they thought that a conditional sentence had a different impact on an offender than a probation order with the same conditions. In order to be effective, and to serve as a true replacement for imprisonment, a conditional sentence order should be truly distinct from a probation order. However, a third of the judges believed that a conditional sentence order did not have a different impact. Only one judge in five stated that a conditional sentence definitely had a different impact on the offender (see Table 2.6). This result may explain why some judges are skeptical about the ability of the conditional sentence to achieve some of the goals of sentencing: in terms of its "penal value" or impact on the offender, the conditional sentence is too similar to a term of probation. Not surprisingly, perhaps, judges who had imposed more conditional sentences were more likely to subscribe to the view that conditional sentences had a different impact on an offender.

Table 2.6: Relative Impact of Conditional Sentence
Do you think that a conditional sentence has a different impact on an offender than a probation order with the same conditions? (Q26)
Response Percent of judges giving this response
Definitely yes 21%
Probably yes 39%
Probably not 27%
Definitely not 7%
I don't know 7%
Total 100% (453)

2.6 Guidance from Courts of Appeal

Most judges wanted more guidance from their Courts of Appeal

Since the introduction of the new disposition in 1996, all provincial Courts of Appeal have rendered judgements about the appropriateness of conditional sentences. Courts of Appeal have made a significant number of judgements. And, as noted, five conditional sentence cases are now under appeal to the Supreme Court of Canada. Judges were asked whether they thought that they were receiving adequate guidance from their respective Courts of Appeal. Generally speaking, respondents seemed to feel that more guidance was required: only 4% felt that adequate guidance was available for "all cases" a further 32% felt that guidance was available in most cases. The percentage of judges stating that they never received adequate guidance was three times higher than the percentage that responded that they always received adequate guidance (see Table 2.7).

Table 2.7: Adequacy of Guidance from Courts of Appeal, all respondents
Do you believe you receive adequate advice from the Courts of Appeal on the use of conditional sentences? (Q8)
Response Percent of judges giving this response
Yes, in all cases 4.4%
Yes, in most cases 31.6%
Yes, in some cases 26.3%
Yes, in few cases 26.5%
No, never 11.3%
Total 100% (434)

Responses with respect to the Courts of Appeal would appear to be most positive in Newfoundland (where 50% stated that they received adequate guidance in all or most cases), and least positive in Ontario, where only approximately one-quarter of judges held this view (see Table 2.8).

Table 2.8: Adequacy of Guidance from Courts of Appeal by Province of Respondent
Received adequate guidance: (Q8)
Province or territory: All or most cases Some cases Few or no cases Total
NF 50.0% 25.0% 25.0% 100% (16)
PEI 25.0% 25.0% 50.0% 100% (4)
NS 47.1% 11.8% 41.2% 100% (17)
NB 38.1% 33.3% 28.6% 100% (21)
QC 44.8% 25.4% 29.9% 100% (67)
ON 26.6% 25.8% 47.7% 100% (128)
MN 43.8% 34.4% 21.9% 100% (32)
SK 33.3% 33.3% 33.3% 100% (30)
AB 44.0% 14.0% 42.0% 100% (50)
BC 30.6% 30.6% 38.8% 100% (49)
YK 25.0% 50.0% 25.0% 100% (4)
NWT 66.7% 33.3%   100% (3)

Note: Percents in italics are based on a very small sample size.

Two qualifications should be borne in mind when considering these trends. First, we have no comparative data. That is, we cannot explore judges' perceptions about the extent of guidance that they receive from Courts of Appeal with respect to other sentencing or trial issues. As well, this survey was conducted in mid-1998. Since then, additional appellate judgements have been handed down, and trial court judges' perceptions of the extent of appellate guidance may have changed. Finally, by the time that this report is published, the Supreme Court may well have provided important guidance with respect to section 742, as a result of the six pending appeals.

2.7 Community/Supervisory Resource Issues

Community resources, particularly adequate supervisory resources, are an important issue for judges considering the imposition of a conditional sentence. Several questions on the survey addressed this issue. Judges seemed somewhat divided on whether they were able to find out what community resources were available: 43% responded that they were able to find out about resources all or most of the time, while 31% stated that they rarely or never were able to find out about such resources (Table 2.9).

Table 2.9: Availability of Resources
If you are considering a conditional sentence, are you able to find out what community resources are available and which might be appropriate for the case before you? (Q9)
Response Percent of judges giving this response
Yes, all the time 9.3%
Yes, most of the time 34.1%
Yes, some of the time 25.9%
Rarely 28.4%
No, never 2.2%
Total 100% (451)

Judges would impose more conditional sentences if there were more support resources

The importance of the issue of community and supervisory resources can be seen by the next Table 2.10, which shows that fully four out of five judges state that they would be more inclined to impose conditional terms of imprisonment if they could be assured that more resources were available. Judges with experience imposing conditional sentences were marginally more likely to state that they would impose conditional sentence orders more frequently if there were more community resources available (see Table 2.10).

Table 2.10: Attitudes toward Conditional Sentences as a Function of Community Resources
Would you be inclined to use conditional sentences more frequently if there were more community and supervisory resources? (Q11)
Response Percent of judges giving this response
Yes 80.2%
No 19.8%
Total 100% (439)

A similar divergence of opinion emerged with respect to the question of supervision. A rather low percentage of respondents (approximately one-quarter) felt that conditional sentence orders are being adequately supervised "all" or "most of the time" A higher percentage (27%) believed that adequate supervision was provided "rarely" or "never". It is worth noting that a third of the respondents chose "don't know" as a response option to this question (see Table 2.11). The following Table 2.11 presents the same data, but excluding the "don't know" respondents.

Table 2.11: Adequacy of Supervision
Do you believe that conditional sentence orders are being adequately supervised in your area? (Q10: Total sample)
Response Percent of judges giving this response
Yes, all the time 5.5%
Yes, most of the time 20.6%
Yes, some of the time 13.9%
Rarely 21.0%
No, never 6.4%
Don't know 32.5%
Total 100% (452)

As can be seen in Table 2.12, judges with more direct experience with conditional sentencing were more likely to hold the view that conditional sentences are adequately supervised in their areas. This suggests that confidence in the adequacy of supervision may play a role in whether a conditional sentence is imposed.[2]

Table 2.12: Adequacy of Supervision by Usage
Do you believe that conditional sentence orders are being adequately supervised in your area? (Q10)
Use of the conditional sentence Yes, all or most of the time Yes, sometimes Rarely or never Total
None 25.0% 16.7% 58.3% 100% (12)
Low (1-10) 34.1% 17.1% 48.8% 100% (129)
Medium or high (11 times or more) 43.6% 23.3% 33.1% 100% (163)

Note: Chi-square =9.04, df=4, Note: 3 cells with E<5, p < .10 Pooling “none” and “low”, Chi-square = 8.56, df=2, p<.05

Judges were asked about the number of available treatment programs (such as substance abuse, anger management, mental health counselling, and drug therapy) in their respective jurisdictions. Almost 40% responded that the number of programs was "rarely" or "never" sufficient. One third stated that the number of programs was adequate for some cases, and a similar percentage felt that the number of programs was adequate for most or all cases (see Table 2.13). The high usage judges were more likely to believe that the number of treatment programs was adequate in their area (Table 2.14).

Table 2.13: Number of Available Treatment Programs
Is the number of available treatment and other programs in your area adequate to support the use of conditional sentences? (Q13)
Response Percent of judges giving this response
Yes, for all cases 2.9%
Yes, for most cases 27.1%
Yes, for some cases 32.0%
Rarely 31.0%
No, never 7.0%
Total 100% (413)

Table 2.14: Adequacy of Treatment Programs by Usage
Is the number of available treatment and other programs in your area adequate to support the use of conditional sentences? (Q13)
Use of the conditional sentence Yes, for all or most cases Yes, for some cases Rarely or never Total
None 23.5% 29.4% 47.1% 100% (17)
Low (1-10) 24.2% 30.4% 45.4% 100% (194)
Medium or high (11 times or more) 36.0% 33.5% 30.5% 100% (200)

Note: Chi-square =11.19, df=4, p=.025

A final question about support programs dealt with the need for additional treatment programs. Specifically, judges were asked to identify needs in light of what already existed in the area. Of the total sample, 281 responded to this question. The most frequently-identified need was for more counselling programs, cited by three-quarters of this group. After counselling, anger management (65%) and alcohol or drug treatment programs were identified as necessary additions.


[2] This too is a correlational finding. However, in this case there is less ambiguity about the direction of causality. Handing down few conditional sentences is unlikely to change perceptions of the adequacy of supervision. The causal mechanism must be in the other direction: having a positive view of the adequacy of supervision enhances the possibility that the judge will impose a conditional sentence.

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