Conditional Sentencing in Canada: an Overview of Research Findings

2. Judicial Attitudes to Conditional Sentencing

2. Judicial Attitudes to Conditional Sentencing

Co-Authors: Anthony N. Doob and V. Marinos

Centre of Criminology, University of Toronto

Introduction

The purpose of this survey was to explore the views and experience of trial court judges with respect to the conditional sentence of imprisonment. 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 sentences that are reported may well be unrepresentative of the majority of conditional sentences imposed.

The remaining weakness with an analysis of reported decisions is that the underlying judicial reasoning has 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 has the advantage of containing direct questions relating to the use of the conditional sentence. This chapter then, should be read with a view to supplementing 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, the findings reported here derive from the period prior to the Supreme Court’s guideline judgements with respect to conditional sentencing (R. v.Proulx; R. v. Wells).

Methodology

A questionnaire was developed and pre-tested with a sample of 13 judges in Toronto and Ottawa. 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. 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 represents 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).

Results

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
Quebec 69 16
Alberta 51 12
British Columbia 50 11
Manitoba 33 7
Saskatchewan 25 6
New Brunswick 21 5
Nova Scotia 20 5
Newfoundland 16 4
Yukon 5 1
PEI 4 1
NWT 3 1
No response[*] 14 3
Total 445 100

Note: in this and all subsequent tables, percentages have been rounded, with the result that some totals may exceed 100%.

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).

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% 44% 13% 38% 100%
PEI -- 75% 25% -- 100%
NS -- 55% 30% 15% 100%
NB 5% 24% 33% 38% 100%
QC 9% 20% 25% 47% 100%
ON 7% 55% 15% 22% 100%
MN 16% 56% 16% 13% 100%
SK 3% 36% 29% 32% 100%
AB 6% 64% 19% 11% 100%
BC -- 64% 21% 15% 100%
YK -- 20% 60% 20% 100%
NWT -- 100% -- -- 100%
Total 6% 48% 21% 25% 100%

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. Slightly more than one judge in ten viewed conditional sentencing as an intermediate sanction. Section 742 expressly identifies the conditional sentence as a replacement for a prison term, (and not a disposition falling 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?
Response Percent of judges giving this response
Reduce imprisonment 32%
Provide a more cost effective alternative than prison 24%
Provide another intermediate sanction 11%
Respond to the offender: rehabilitation, reintegration, employment, etc. 27%
Other 6%
Total 100%

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 (65%) 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 incidents. 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? (Note: We have coded "violent" and "property" offences independently; hence a judge could have mentioned both.
Response Percent of judges giving this response
There are no particular offences that are especially suited for a conditional sentence 26%
One or more violent offences (mostly "minor") was listed 8%
One or more property offences was listed 57%

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% 35% 35% 72% 59%
Sometimes 34% 33% 41% 24% 31%
Almost Never/Never 15% 32% 24% 4% 10%
Total 100% 100% 100% 100% 100%

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.

2.5 Impact of a Conditional Sentence

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

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 sceptical 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 close 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?
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%

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. 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

Do you believe you receive adequate advice from the Courts of Appeal on the use of conditional sentences?
Response Percent of judges giving this response
Yes, in all cases 4%
Yes, in most cases 32%
Yes, in some cases 26%
Yes, in few cases 27%
No, never 11%
Total 100%

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
Province or territory: All or most cases Some cases Few or no cases Total
NF 50% 25% 25% 100% (16)
PEI 25% 25% 50% 100% (4)
NS 47% 12% 41% 100% (17)
NB 38% 33% 29% 100% (21)
QC 45% 25% 30% 100% (67)
ON 27% 26% 48% 100% (128)
MN 44% 34% 22% 100% (32)
SK 33% 33% 33% 100% (30)
AB 44% 14% 42% 100% (50)
BC 31% 31% 39% 100% (49)
YK 25% 50% 25% 100% (4)
NWT 67% 33% -- 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, the reader is reminded that these responses reflect judicial reaction prior to the Supreme Court’s response to six conditional sentence appeals.


[*] refers to no identification of jurisdiction on questionnaire

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