BRIEF TO THE

STANDING COMMITTEE ON JUSTICE, HUMAN RIGHTS,
PUBLIC SAFETY AND EMERGENCY PREPAREDNESS

HOUSE OF COMMONS
39^th Parliament, 1^st Session

On Amendments to the Criminal Code of Canada
(Conditional Sentences)

Bill C-9

Background of Canadian Criminal Justice Association

The Canadian Criminal Justice Association (CCJA) welcomes the opportunity to present this brief to the Standing Committee on Justice and Human Rights regarding Bill C-9, an Act to Amend the Criminal Code of Canada (Conditional Sentences). Indeed, our Association has grave concerns regarding C-9. We outline them here and look forward to your questions and comments.

The CCJA is one of the longest serving non-governmental organizations of professionals and individuals interested in criminal justice issues in Canada, having begun its work in 1919 and having testified before this committee on numerous occasions. Our association consists of nearly 800 members and publishes the Canadian Journal of Criminology and Criminal Justice, the Justice Report, the Justice Directory of Services, and the Directory of Services for Victims of Crime. We also organize the “Canadian Congress on Criminal Justice” every two years.

History of the Conditional Sentence

On September 3rd, 1996, the federal government proclaimed Bill C-41, the first major sentencing reform in Canada. One of its central elements was the conditional sentence of imprisonment. This Bill emerged in response to two reports that examined sentencing in Canada (Roberts & Laprairie, 2000:9). The first report came from the Canadian Sentencing Commission in 1987. Its focus was on parole and sentencing, identifying the overuse of imprisonment as a sanction as a key problem in the criminal justice system. The second report was published in 1988 by the House of Commons Standing Committee on Justice and by the Solicitor General after holding public hearings and visiting correctional institutions throughout the country (chaired by David Daubney, it became known as the "Daubney Report"). It contained over 100 recommendations, one of which echoed the Sentencing Commission’s report recommendation to reduce reliance on imprisonment as a sanction.

Bill C-41 provided two important additions to the Criminal Code of Canada. Purposes and principles of sentencing were outlined in section 718; legislation on conditional sentencing emerged under section 742. Conditional sentencing allows offenders to serve a sentence of imprisonment in the community with mandated conditions placed upon them. It was hoped that conditional sentencing would reduce our reliance on prison as a sanction while also serving to increase the use of restorative justice measures.

In addition, on July 1, 1999, amendments were enacted to help judges and police deal effectively with offenders who breach a conditional sentence order. These amendments allow police to intervene quickly when a conditional sentence is breached and ensure that those offenders who do not respect the terms of a conditional sentence face appropriate consequences.

Recent sentencing data for the 2003-2004 fiscal year reveal that conditional sentences represented 5.2 percent of all sentences (N = 257,127 cases). Itemisation of these conditional sentences reflects that most were for property offences (32%), as opposed to violent offences (27%). The proportion of ‘non violent’ convictions increases when we will include other applicable categories: administration of justice, traffic offences, other Criminal Code offences, and other federal statute offences (drug offences). Even within the ‘violent’ category, the vast majority of offences resulting in conditional sentences are simple or aggravated assault, not sexual offences, robbery, or homicide. Indeed, sexual offences resulted in less than 4% of all conditional sentences in 2003-2004 in Canada. As such, sexual assault offenders receiving a conditional sentence represented only 17.8 percent of all sexual assault convictions; the vast majority received a sentence of probation (Juristat, Table 5, 2004).

To date, there is no known recidivism data available to evaluate the impact of conditional sentencing.

Current Proposal (C-9):

The current Bill proposes to amend Section 742.1 of the Criminal Code of Canada by prohibiting the imposition of a conditional sentence for any conviction of an Indictable offence carrying a sentencing of ten (10) years or more. This amendment will have the effect of not only barring a conditional sentence for selected crimes of violence, but also for numerous property crimes such as burglary (which carries a life sentence), credit card theft (342 CCC), theft over $5000 (322 CCC) and motor vehicle theft over $5000 (355 CCC), among others.

During CCJA’s previous testimony in 2000, we made several observations about legislative enactments designed to bar specific categories of offenders from the benefits of community penalties, as embodied in the conditional sentence. Several of these observations are reiterated here.

First, we note that offenders are more likely to respond positively to conditional sentences rather than to periods of incarceration, even in the case of violent crime (Roberts & Laprairie, 2000). Accordingly, any measure taken to limit the use of conditional sentencing may incur the opposite effect – increasing the risk of future offending rather than serving to protect society.

Second, we observe that far too frequently, legislation like C-9 is triggered by atypical or horrific cases that hardly resemble the vast majority of sentences imposed on offenders. This seems to be the situation here, where the same half-dozen conditional sentences are used time and again to justify sharply limiting the sentencing provisions of the Criminal Code, even though conditional sentences number about 13,000 each year (Statistics Canada, 2003; Juristat, Table 5, 2004).¹ On the other hand, we know that research findings indicate harsher criminal justice sanctions have no deterrent effect on recidivism. On the contrary, increased punishment produces a slight (3%) increase in recidivism. These findings were consistent across subgroups of offenders (adult/youth, male/female, white/minority) (Smith, P., Goggin, C., and Gendreau P., 2002).

Third, one legislative purpose of conditional sentencing was to reduce increasing rates of incarceration in Canada. Clearly, the 50,000+ conditional sentences imposed to date have helped to reduce that load. Evidence at the provincial level indicates that incarceration rates have at least stabilized and in some instances have decreased due to the conditional sentence (Roberts, 2005:195). This appears to be reflected in a substantial drop in sentenced admissions to provincial reformatory. CCJA still believes that too many offenders are being sent to prison, costing Canadian taxpayers millions of dollars without effectively deterring crime. There is no evidence that incarceration deters crime (Gendreau, 1996; CCJA, 1997), and with increasingly high rates of recidivism we must continue to search for alternatives to incarceration if we want to reduce crime in our society.

Fourth, we and others have noted that quite frequently, the seriousness of an offence and the actual involvement of the Accused is not reflected by the statutory maximum punishment available under the Criminal Code. It is extremely rare to see even violent offenders sentenced to the maximum statutory sentence under the Code. Hence, the notion of using a statutory maximum sentence as a ‘gatekeeper’ for eligibility to conditional sentencing is illogical and analogous to using a sledgehammer to squat houseflies.

Additionally, the CCJA expects that C-9, if passed, will have a pronounced negative impact in jurisdictions with high Aboriginal populations. Aboriginal peoples are over-represented in Canada’s criminal justice system, making up a disproportionate percentage of offenders serving sentences both in custody and in the community. Indeed, Aboriginal offenders are more likely than non-Aboriginals to be serving their time within institutions rather than in the community under supervision (Correctional Services Canada, 2006:10). Furthermore, we know that recidivism rates for Aboriginal offenders sentenced to custody are higher than for the general offender population. It is apparent that incarceration is not an effective deterrent for this population (Rudin, 1999).

Conditional sentences provide a much-needed alternative to incarceration for this population. As such, in areas of high Aboriginal populations, high rates of use are seen. In Manitoba in 2000/2001, 49% of offenders commencing conditional sentences were Aboriginal. The rate in the Yukon was 65%, in Saskatchewan, 72%. Nunavut reported a rate of 95% (Statistics Canada, 2003).

Section 718.2 (e) of the Criminal Code of Canada directs the court to consider all available sanctions other than imprisonment that are reasonable, with particular attention to the circumstances of Aboriginal offenders. Removing any possibility of a conditional sentence in many cases, as is suggested in C-9, effectively removes a useful tool for sentencing judges to use in following this direction (with regard to both Aboriginals and non-Aboriginals). This runs contrary to the spirit in which the original C-41 was enacted, and detracts from the potential to utilize restorative justice measures for this population (as encouraged in the decisions of both R. v Gladue with respect to aboriginal offenders and R. v Proulx with respect to conditional sentences).

Conditional sentences offer judges the opportunity to alleviate the above situation, reducing our reliance on incarceration for Aboriginal offenders and allowing them to take part in culturally appropriate community based programming while still retaining the principles of deterrence and denunciation as set out in section 718 of the Criminal Code.

Recommendations:

If we accept all of the benefits of conditional sentencing as designed in the Bill C-41 legislation, then we must move forward by expanding the scope of its use. By limiting the use of conditional sentencing to sentences of less than two years or to specific offences, we deny the full potential of its capabilities and reduce the effectiveness of its positive outcomes. Accordingly, our Association asserts that the ability to impose conditional sentences should be expanded. This will allow many low risk offenders in minimum or medium security prisons the opportunity to reap the deterrent, rehabilitative and restorative benefits of conditional sentencing. These offenders are highly likely to be given day parole, and incarcerating them does nothing but delay their eventual reintegration into society. By providing a more open standard for judges to impose conditional sentences, crime can be reduced, millions of dollars may be saved, and the restorative process can be hastened.

Some judges had expressed concern over whether enough resources are available to effectively supervise conditional sentence offenders, and therefore have difficulty determining whether or not to impose a conditional sentence, (Roberts, 2001:1024-1025). Accordingly, they may not impose a sentence of incarceration for fear that a conditional sentence will not be supervised correctly. We assert that in order for judges to have confidence in imposing a conditional sentence, probation offices or applicable community agencies should demonstrate on pre-sentence reports that appropriate resources are available for effective supervision of a conditional sentence. This will allow judges to know that their sentence is being imposed correctly and completely, thereby increasing the use of conditional sentencing as intended by the legislation.

For conditional sentencing to work as it was intended, the above-mentioned resources need to be consistently and adequately funded in place to monitor and support those offenders serving their sentences in the community. These resources ensure that offenders receive the necessary guidance, rehabilitation and reintegrative effects of the conditional sentence while simultaneously protecting society and victims. Without such supports in place, public and judicial confidence in conditional sentences is eroded; indeed, a lack of such resources effectively circumvents the purpose and potential of a conditional sentence. By increasing and consistently supporting said resources, victims and the public are protected, judges maintain confidence and offenders can be monitored and appropriately supported through their sentences.

The goal of conditional sentencing is to not only reduce increasing rates of incarceration but to also increase the use of restorative justice in our communities. One of the most effective restorative justice tools is that of victim-offender reconciliation. This process allows the offender to recognize their wrongdoing and express regret to the victim while at the same time serving as a cathartic tool for the victim to overcome their victimization. By increasing and emphasizing the use of victim-offender restitution and reparation through conditional sentencing, we can increase the effectiveness of it as a sentencing tool, as well as increase public satisfaction with conditional sentencing as a sanction. Furthermore, this process will especially assist aboriginal communities that already emphasize restorative principles in sentencing and reintegration of offenders (CCJA, 2000).

A recent study by Justice Canada on several mediation and restitution programs suggests that this approach contains promise to both satisfy victims and assist offenders in taking responsibility for their crimes (Latimer, Dowden & Muise, 2001).

Informed public support for the criminal justice system is necessary because the community must both respect the law as well as have confidence in legislators and judges and their decisions. Studies have repeatedly indicated that the general public is either unaware of conditional sentencing or cannot differentiate it from probation. Further, research indicates that the more information that people are given about conditional sentencing, the more likely they are to accept it as a sanction (Sanders & Roberts, 2000). If the public is made aware that conditional sentencing will increase public safety through deterrence, they will be more likely to support its use. To wit, we recommend that a public awareness campaign about the role and benefits of conditional sentencing be implemented.

Conclusion:

For the reasons described above, the Canadian Criminal Justice Association does not support the proposed Bill and urges this Committee to reject C-9. Indeed, C-9 detracts from the progress made with C-41 in 1996 and its later amendments and inhibits the potential of conditional sentencing as a tool and effective sanction.

Alternatively, the Canadian Criminal Justice Association recommends that conditional sentencing be retained and indeed enhanced by expanding its availability through mechanisms that:

• increase maximum lengths of sentence where a conditional sentence can be imposed;
• increase resources available to monitor offenders receiving conditional sentences;
• demonstrate that economic support is available for its implementation.
• emphasize victim-offender restitution and reparation;
• increase public support for conditional sentencing;

Should the Standing Committee feel that there is reason for more study on the impact of conditional sentencing, our Association would be happy to assist. For example, we are willing to design and implement a recidivism study on conditional sentencing on behalf of the Standing Committee. The Canadian Criminal Justice Association is available as well to undertake a public education campaign, perhaps in partnership with government criminal justice organizations, should the Committee believe it would be useful in addressing both unwarranted fear and cautionary measures relating to conditional sentencing.

^1. For example, Regina v. Turcotte (2000) is often cited in the media. It involved a young man murdering his 71-year-old mother by strangling her with a telephone cord and a TV cable cord. However, the case is often misconstrued (Blatchford, 2006). Turcotte did not plead guilty to manslaughter, but was convicted by a jury after the Crown alleged second-degree murder. In other words, a jury of citizens disagreed with the Crown’s presumption. Both the victim and the offender drank heavily, and Mr. Turcotte was on disability for an injury, and complicated matters by taking pain medication as well. Both had been drinking on the evening of the homicide, and both were legally intoxicated (BA = 0.230). Prior to the incident, there was evidence that Mr. Turcotte’s mother had confronted him with a knife (more than once). Allegedly, a struggle ensued, and Mr. Turcotte’s does not remember what happened until he saw his mother on the ground, bleeding from the nose. He called his sister, and then emergency services. The Ontario Court of Appeal took issue with the Crown’s appeal against sentence, and found that there were, indeed, manslaughter cases in which a conditional sentence was both legal and appropriate. It then cited the Trial judge’s analysis, in which Justice Mercier then found that neither the family, the accused, nor the community would benefit from a penitentiary sentence. The judge concluded that Mr. Turcotte had taken positive steps to enroll in treatment for alcohol abuse prior to sentencing. The Court further found that the Accused no longer represented a high risk to the community. He then imposed a panoply of restrictive conditions. Apparently, Mr. Turcotte finished his sentence without incident or violation.

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