Conditional Sentencing in Canada: an Overview of Research Findings
- 5.1 Conditions, Conditions, Conditions
- 5.2 Future Research Priorities
- 5.3 Effectiveness of Conditional Sentencing
- 5.4 Electronic Monitoring
- 5.5 “Net-widening”
- 5.6 Judicial Attitudes
- 5.7 Conclusion
It would be unreasonable to expect any new sanction to be implemented expeditiously and without controversy. The conditional term of imprisonment is a complex disposition that requires careful consideration before being imposed. That said, it is not surprising that trial (and appellate) court judges across the country have taken some time to determine the way in which conditional sentencing may best contribute to the sentencing options traditionally available to the court. Simply put, the courts have taken some time “finding a place for conditional sentences” (Manson, 1997). Some issues are becoming clearer, as a result of three years experience with the new sanction and the Supreme Court’s recent judgements in the conditional sentence appeals.
This is the title of an article by Judge Renaud on the topic of conditional sentencing. It captures well the most important issue that has emerged in the area of conditional sentencing. As data described in this report have demonstrated, the nature of the conditions attached to a conditional sentence order are critical to ensuring the support of the community. But community acceptance is not the most important element of the optional conditions imposed.
As noted in section 742.3(2)(f), when imposing a conditional sentence should consider “reasonable conditions” 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”. In other words, the optional conditions should be selected to promote the goal of special deterrence.
This research report contains some preliminary data regarding the use of the new sanction. Many questions remain to be answered. These await the incorporation of the conditional sentence into the annual Adult Criminal Court Survey (ACCS) conducted by the Canadian Centre for Justice Statistics, a division of Statistics Canada. The ACCS is the source of the annual publication on court trends which forms part of the Juristat series. Once that has been accomplished, we shall be in a much better position to understand trends in the use of the conditional sentence of imprisonment. The judgement of the Supreme Court in Proulx made it clear that conditions are critical to the conditional sentence for several reasons. First, and primarily, because it is through the use of punitive conditions that the court distinguishes a conditional sentence from a term of probation. As the Court noted:
“Parliament intended imprisonment, in the form of incarceration, to be more punitive than probation, as it is far more restrictive of the offender’s liberty. Since a conditional sentence is at least notionally, a sentence of imprisonment, it follows that it too should be interpreted as more punitive than probation.” (R. v. Proulx, paragraph 29).
The Court proceeded to offer some practical advice as to how courts might make a conditional sentence more punitive than probation. It suggested that “conditional sentences should generally include punitive conditions that are restrictive of the offender’s liberty. Conditions such as house arrest or strict curfews should be the norm, not the exception.” As the Minister of Justice said during the second reading of Bill C-41 (House of Commons Debates) “this sanction is obviously aimed at offenders who would otherwise be in jail but who could be in the community under tight controls” (R. v.Proulx, paragraph 36).
There is some evidence from the case law that trial judges and appellate courts had been moving in the direction of imposing stricter conditions on offenders serving terms of imprisonment in the community. For example, one analysis noted that although the optional conditions attached to conditional sentences and terms of probation were fairly similar, for offenders convicted of crimes of violence, there were clear differences. Offenders serving conditional sentences for crimes of violence were subject to significantly more restrictions on their liberty than offenders sentenced to terms of probation for this same form of offending (Roberts, Antonowicz and Sanders, 2000).
What is needed, therefore, is an analysis of the optional conditions imposed upon offenders serving conditonal sentences in the community, to ensure that the guidelines laid down by the Supreme Court in Proulx are indeed being followed by judges at the trial court level.
A second important research question that emerges from the Proulx judgement concerns the nature of judicial response to breach. The statutory framework of the conditional sentence order permits the court to choose from a range of options in the event that a breach of conditions is proven. The court may vary the conditions attached to the order, commit the offender to custody for some portion of the time remaining (or the balance of time remaining on the order), or simply issue a warning to the offender and permit him to continue serving the conditional sentence as originally imposed. However, the Supreme Court made it clear in Proulx that
“where an offender breaches a condition without reasonable excuse, there should be a presumption that the offender serve the remainder of his or her sentence in jail.” (R. v. Proulx, paragraph 39). We know little about the nature of judicial response to breach to date. Accordingly, an important goal of future research should be to document the outcomes of breach hearings to date.
In order to fully understand this issue it will be necessary to conduct interviews with Crown counsel and probation officers, in order to know whether all allegations of breach hearings result in an actual hearing. It is possible that an allegation of breach that occurs late in the conditional sentence will not result in official action by the criminal justice system.
The results to date with respect to the recidivism of offenders sentenced to conditional sentences are encouraging. Few offenders have accumulated fresh criminal charges during the course of their period of supervision in the community. This appears true for all types of offenders, including those sentenced for crimes of violence. If the re-offending rates remain low, it is likely that judges will be encouraged to use the new sanction more widely. As well, as the general public becomes more aware of this reality, some of the opposition to conditional sentencing will disappear. If it transpires that the recidivism rate is no higher for offenders on conditional sentences (than offenders sentenced to serve their sentences in a correctional institution), the public may be even more supportive. This may be particularly true if the public is made aware that it costs much less to supervise an offender in the community than to imprison him or her in correctional institution.
Once baseline data have been established, special studies should be instituted to understand the effectiveness of different optional conditions. The link between the optional conditions and the sentencing objective of special deterrence is clear from the statutory framework of the sanction. An important research objective would consist of understanding how recidivism rates – the ultimate measure of whether special deterrence has worked -- are affected by the specific optional conditions, such as reporting frequency and court-ordered treatment.
Another goal of the research should be to identify which kinds of offenders are considered high risk in terms of re-offending. The risk to the community remains a central concern for the court that is considering the imposition of a conditional sentence order, yet we do not yet have systematic, national information about the breach rates of conditional sentence orders imposed to date.
Some jurisdictions (such as the United Kingdom) are now making extensive use of electronic monitoring of offenders. To date, this technology has not been widely used as a way of monitoring offenders sentenced to a conditional term of imprisonment. One reason for this is that the necessary resources are seldom available. The specific jurisdictions either do not have electronic monitoring as a program, or EM is reserved for prisoners released on some form of temporary absences from prison. If EM were more widely available, judges may well expand the ranger of offenders sentenced to a conditional sentence to include higher-risk cases.
The information available so far with respect to the impact of the conditional term of imprisonment on admissions to custody is incomplete. Nevertheless, it offers little to suggest that admissions to custody have declined (see Reed and Roberts, 1999).
Since the primary justification for introducing the conditional sentence was to reduce, in a safe and principled fashion, the number of persons sentenced to prison, this issue should clearly be the object of a research initiative. Several experts (e.g., Gemmell, 1997) have warned about the possibility of “net-widening”. If the number of admissions to prison has not declined as a result of the introduction of the new sanction, then net-widening must have taken place. That is, some of the offenders who have received a conditional sentence of imprisonment would, prior to 1996 have received a sentence other than imprisonment, presumably a term of probation. Researchers will need to take a careful look at the characteristics of persons sentenced to a conditional sentence, in order to establish whether “net widening” has occurred.
The survey of judicial officers reported in this report was conducted early in the new sentencing regime. Since the survey was conducted, several developments have taken place, including the decision of the Supreme Court in the six conditional sentence appeals. It would be interesting to conduct a second survey several years after the first, to follow the evolution of judicial attitudes with respect to the new sentence. The attitudes of judges are critical to the success of the new sanction. For this reason alone it is important to conduct systematic research into their experiences and perceptions. In addition, it is important to know more about the experiences and perceptions of other criminal justice actors, such as Crown and defence counsel. Probation officers constitute one of the most critical groups. They are responsible for administering the conditional sentence order, and ensuring that offenders comply with the court-ordered conditions. A useful research exercised would consist of a survey of the experiences and attitudes of these groups.
Whether a given penological innovation “works” is to a large extent an empirical question that can only be answered through the use of systematic research. The conditional sentence of imprisonment is no exception to this rule. The success of the new sanction will only be really known once a considerable amount of research has been conducted. This report is a modest first step towards that goal.
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