Conditional sentencing, introduced in Canada in September 1996, allows for sentences of imprisonment to be served in the community, rather than in a correctional facility. Conditional sentences normally include a period of house arrest but may also include graduated restrictions including curfew and residence requirements, in order to allow those bound by a conditional sentence to work or attend school where appropriate.

One of the primary goals of conditional sentencing was to reduce the reliance upon incarceration by providing an alternative sentencing mechanism to the courts.

The provisions governing conditional sentences are set out in sections 742 to 742.7 of the Criminal Code.  These sections set out five criteria that must be met before a conditional sentence can be considered by the sentencing judge:

1. The offence for which the person has been convicted must not be a serious personal injury offence (as defined in section 752 of the Criminal Code); a terrorism offence; or a criminal organization offence.
2. The offence for which the person has been convicted must not be punishable by a minimum term of imprisonment;
3. The sentencing judge must have determined that the offence should be subject to a term of imprisonment of less than two years;
4. The sentencing judge must be satisfied that serving the sentence in the community would not endanger the safety of the community;
5. The sentencing judge must be satisfied that the conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in sections 718 to 718.2 of the Criminal Code.

Insofar as the fifth criterion is concerned, among the objectives of sentencing are:

• The denunciation of unlawful conduct;
• The deterrence of the offender and others from committing offences;
• The separation of the offender from the community when necessary;
• The rehabilitation of the offender;
• The provision of reparation to victims or the community; and
• The promotion of a sense of responsibility in the offender.

This week, additional portions of the Safe Streets and Communities Act came into force aimed at restricting the use of conditional sentences for specific types of criminal offences.

The list of offences for which conditional sentences will no longer be available after November 20th, 2012 is as follows:

Offences for which the law prescribes a maximum sentence of 14 years or life imprisonment, including: manslaughter, aggravated assault, arson and fraud over $5,000.

Offences prosecuted by indictment and for which the law prescribes a maximum sentence of imprisonment of 10 years that:

• result in bodily harm;
• involve the import/export, trafficking and production of drugs; or
• involve the use of weapons; and,

The following offences when prosecuted by indictment:

• prison breach
• criminal harassment
• sexual assault
• kidnapping
• trafficking in persons
• abduction of persons under 14 (i.e., by a stranger)
• theft over $5,000
• motor vehicle theft
• breaking and entering a place other than a dwelling-house
• being unlawfully in a dwelling-house
• arson for fraudulent purpose.

One concern held by those within the justice system is that the elimination of conditional sentences will lead to an increase in plea bargaining, as those charged with crimes attempt to circumvent a finding of guilt for offences where a conditional sentence is unavailable.

Other concerns include increased racial disparities in inmate populations, an increase in costs to the justice system as a whole as incentives to plead guilty are removed and an increased number of charges going to trial which may cause serious matters to be dismissed due to delay. Moreover, the changes simply transfer discretion from the judiciary to the police and/or Crown attorneys.

Conditional sentencing were originally enacted both to reduce reliance on incarceration as a sanction and to increase the principles of restorative justice in sentencing. They were also premised on the notion that most rehabilitation programs can be more effectively implemented when the offender is in the community rather than in custody and that prison is no more effective a deterrent than more severe intermediate punishments, such as enhanced probation or home confinement.

The recent amendments to the Criminal Code make it clear that our insatiable appetite to be seen as being “tough” on crime outweigh these laudable ideals.

Perhaps the day will come when being smart instead of tough on crime will be the driving force behind our criminal justice policy.