Understanding Canadian Criminal Law

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Ending house arrest for various criminal and drug offences

house arrestConditional 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.

9 thoughts on “Ending house arrest for various criminal and drug offences”

  1. I had a hard time understanding this post. I heard threw the grape vine that the courts no longer offer house arrest for drug offences. Just wondering if this is actually true. I have been charged with possession for the purpose of trafficking speed. I had been charged with this same offence less than 5 yrs ago and served a year on house arrest and did not default on that sentence what so ever,

    1. Unfortunately, a conditional sentence is no longer available for someone convicted of possession for the purpose of trafficking speed (methamphetamine) due to the fact that it carries a maximum penalty of life in prison.

  2. I have a question about conditional sentencing. If someone was charged for fraud over $5000 before the new laws came into play – in 2011 – but didn’t plead guilty until October 2013, is a conditional sentence available? Hard to understand when new guidelines actually kicked in.

    1. If a person committed the fraud before the changes to conditional sentences came into law, the law applicable at the time would apply regardless of when the person was finally sentenced. In this case, I expect a conditional sentence would still be an available sentencing option.

  3. So if someone were charged with a few counts of fraud over $5000 in 2013 and is still awaiting trial, if convicted they do not apply for a conditional sentence? Also is there a chance the crown could plea them down to under $5000 to avoid jail time. This is a first time offence with several under $5000 and a few over $5000.

    1. If the offences are alleged to have been committed in 2013, a conditional sentence is not available for a sentence of fraud over $5000. It is possible they may agree to a guilty plea to a lesser or different offence (such as fraud under $5000) to avoid the lack of a conditional sentence. This will need to be negotiated with the prosecutor by you or your lawyer based on the specific facts of your case.

  4. I have a trafficking charge of 4 onzes of marijuana, could I possibly get house arrest and fine? I’m 32 years old , have no priors what so ever and work full time

    1. Normally, someone charged with trafficking 4 ounces of marijuana may be sentenced only to a fine. It is also possible to receive a conditional sentence (house arrest) for trafficking marijuana. However, each case is fact specific and requires a full examination of the facts and the offender’s personal circumstances before a lawyer can provide an opinion on what type of sentence an offender may receive.

  5. I have aggravated assault An unlawful confinement an a breach they want 3 years I don’t have a record I came home from work an found my best friend on top of my wife with my kids in the house it’s been going on sense may of 2013 I lost my mind like I was helping this guy out give him a room in my house an flew him out west to help him better his life an he does this I plead guilty already right from the arrest on I told them what happen an save the courts time buy the court not haven to pay for all witnesses to come down fro the east coast so I save them a bunch of stuff I have been threw alot my self I am running my own business right now an I have sentencing in 3 days with a lawyer that has been on the file for 3 weeks how is this possible …will they alow postpone ……. I reallly hope I can get house arrrrest with stricked everything an all meatings an I have never had fail to aperee or nothing like that ….do I have a chance ….??????*************

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