Conditional Sentencing in Canada: an Overview of Research Findings

1. Origins and Statutory Framework of Conditional Sentencing

The conditional sentence of imprisonment entered the Criminal Code on September 6, 1996. It was one of the central elements of the federal government’s sentencing reform Bill (C-41). That Bill was the response to two reports that examined the sentencing process in some detail. One was the Report of the Canadian Sentencing Commission (published in 1987). The Sentencing Commission was a royal Commission of Inquiry with a mandate to explore the sentencing and parole systems and to make reform recommendations. The Commission identified a number of problems in the sentencing process, including an overuse of imprisonment as a sanction. Although the Sentencing Commission did not propose a conditional sentence, an earlier sentencing reform Bill (C-19) that died on the order paper had proposed a somewhat similar sanction.

The second major report to which Bill C-41 was a response was that of the House of Commons Standing Committee on Justice and Solicitor General (as it then was). Headed by David Daubney, M.P., the Committee toured the country holding public hearings and visiting correctional institutions. In 1988, it published its report, which contained approximately 100 reform recommendations. The Daubney Committee aligned itself with the Sentencing Commission when it identified the over-use of imprisonment as one of the sentencing problems in need of a response. The federal government studied these reports and conducted extensive consultations with provincial and territorial governments. The outcome was the sentencing reform Bill that was eventually proclaimed by Parliament on September 3, 1996.

The Sentencing Reform Bill introduced a number of important changes to the sentencing process in Canada.[1] Perhaps the most important innovation was the creation of a statement of the purpose and principles of sentencing. This statement is now found in Section 718 of the Criminal Code of Canada. The creation of the conditional term of imprisonment was another major change that has subsequently altered the landscape of sentencing.

The goal of the conditional sentence was to reduce the number of sentences of imprisonment in a safe and principled way. As will be seen, several conditions must be fulfilled before an offender sentenced to prison may be allowed to serve his sentence in the community under supervision.

According to Section 742.1:

Imposing of conditional sentence - Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

  1. imposes a sentence of imprisonment of less than two years, and
  2. is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2

the court may, for the purposes of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the offender’s complying with the conditions of a conditional sentence order made under section 742.3.

As can be seen, if an offender has been convicted of the small number of offences that carry a minimum term of imprisonment, a conditional sentence is not a possible sanction. This exclusion reflects a desire on the part of Parliament to ensure consistency with previous Criminal Code amendments.

The first prerequisite condition is designed to serve two functions. First, the court must have decided to impose a prison term. Without this requirement, there is the danger that the courts would use the new sentence as a replacement for sentences of probation. This would result in the phenomenon identified by criminologists as “widening of the net”. By this, they mean that a disposition designed to reduce the number of admissions to custody, ends up attracting more, not fewer people into prison. This “widening of the net” has occurred in other countries and there have been warnings about the possibility of it occurring in Canada with respect to the new conditional sentence (see Gemmell, 1997).

The second purpose of requiring the court to first have imposed a term of custody under two years is that the rule serves as a seriousness threshold. The most serious crimes, which would normally result in a term of custody of two years or more, are thereby excluded from consideration for a community-based sentence of imprisonment.

The second requirement (section 742.1(b)) also has two elements. First, it requires the court to be satisfied that the offender does not pose a risk to the community. Second, regardless of the probability of re-offending, if the imposition of a conditional sentence is not consistent with the statutory purpose and principles of sentencing, the offender should be imprisoned in a correctional facility. Finally, it should be noted that even if all the statutory prerequisites are fulfilled, the court still has the discretion to order the offender to serve the term of imprisonment in a correctional facility rather than at home under supervision.

Conditions of a Conditional Sentence Order

An offender ordered to serve a sentence of imprisonment in the community must abide by a number of compulsory conditions described in section 742.3 (1):

The court shall prescribe, as conditions of a conditional sentence order, that the offender do all of the following:

  1. keep the peace and be of good behaviour;
  2. appear before the court when required to do so by the court;
  3. report to a supervisor
    1. within two working days, or such longer period as the court directs, after the making of the conditional sentence order, and
    2. thereafter, when required by the supervisor and in the manner directed by the supervisor;
  4. remain within the jurisdiction of the court unless written permission to go outside that jurisdiction is obtained from the court or the supervisor; and
  5. notify the court or the supervisor in advance of any change of name or address, and promptly notify the court or the supervisor of any change of employment or occupation.

In addition to the compulsory conditions to which all offenders serving a conditional sentence are subject, the Code provides the court with the discretion to impose a number of optional conditions as well.

742.3(2) Optional conditions of conditional sentence order – The court may prescribe, as additional conditions of a conditional sentence order, that the offender do one or more of the following:

  1. abstain from
  2. the consumption of alcohol or other intoxicating substances, or
    1. the consumption of drugs except in accordance with a medical prescription;
    2. abstain from owning, possessing or carrying a weapon;
  3. provide for the support or care of dependants;
  4. perform up to 240 hours of community service over a period not exceeding eighteen months;
  5. attend a treatment program approved by the province; and
  6. Comply with such other reasonable conditions as the court considers desirable, subject to any regulations, made under subsection 738(2), for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of other offences.

The provision makes it clear that the optional conditions imposed by the court should be aimed at preventing recidivism by the offender. This underlying purpose differs from the purpose of the optional conditions attached to a probation order. According to section 732.1(3)(h), the optional conditions of a probation order are imposed for the purpose of “protecting society and for facilitating the offender’s successful reintegration into the community.”

[1] For a description of the other elements of the Bill, see Daubney and Parry (1999).

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