Winnipeg Free Press - PRINT EDITION

Take conditions off conditional sentences

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I do not know who invented the conditional sentence, but whoever it was did a great service to the administration of criminal law in this country.

A conditional sentence is actually a sentence of imprisonment but the "imprisonment" can be served in the community. It cannot exceed two years less a day in duration. If the offender breaches its terms, the usual remedy is that they serve the balance of the sentence in jail.

For the uninitiated, a conditional sentence enables the offender to serve the sentence in the community rather than in jail. Usually it takes the form of house arrest, subject to exceptions. The offender is entitled to make visits to doctors or lawyers, or conduct other necessary business. If the offender is employed, he will likely be allowed to continue his travel to work.

The restraint on liberty takes the form of a curfew during the non-working hours. Conditions will often include abstinence from alcohol and non-prescription drugs.

Currently, the trial judge has discretion to impose a jail sentence of less than two years where that is appropriate. But new legislation will remove the judge's discretion to allow that sentence to be served in the community.

It would bar conditional sentences for crimes where the maximum sentence is 10 years imprisonment (down from 14 years), and where it is prosecuted by indictment and involves bodily harm, the use of a weapon or trafficking in illegal drugs or other offences.

In short, there will be scores of offences where a conditional sentence will be unavailable. The consequence will be an increase in prisoners.

Conditional sentences are imposed in circumstances where the sentencing court wants to keep the offender out of the mainstream prison population and has concluded that this can be done without endangering the community.

It is seen by many as giving the offender a break and it usually is. Conditional sentences are but one of a variety of tools available to avoid jail time. If the circumstances do not call for incarceration, the sentence might be a suspended sentence and a period of probation, or a fine, or some combination of these possible penalties.

A sentence can be served intermittently. However, an intermittent sentence cannot exceed 90 days in jail. Under an intermittent sentence, the offender voluntarily goes to jail on the weekends, but otherwise continues to reside and work in the community.

But what is to be done with an offender who has committed an offence warranting something more significant than fines and probation, or serving a sentence intermittently? What is to be done where precedent suggests a sentence in the range of 18 to 24 months?

Before conditional sentences were added to the Criminal Code, a term of imprisonment was mandated, even though the sentencing judge might impose the sentence reluctantly. The courts are well aware that, for first offenders, for younger offenders, for those who hold steady employment, or for those with family responsibilities that the offender appears to take seriously, a jail term will be destructive to chances for rehabilitation.

Conditional sentences, first introduced to the Criminal Code in 1995, were quickly welcomed by judges at every level. They soon displaced intermittent sentences as the preferred method of dealing with minor offences -- but serious enough to require something more than a probation order. Now the court can order house arrest under a conditional sentence for any period up to a maximum of two years less a day.

This penalty option does not apply where the Criminal Code decrees a minimum sentence of any duration. The current government has put a wide number of offences out of bounds by legislating minimum sentences, thus limiting the discretion of the sentencing court and barring the use of a conditional sentence.

The much-heralded legislation now before Parliament further restricts the use of conditional sentences. The Safe Streets and Communities Act would prevent the imposition of a conditional sentence for any offence where the maximum sentence is 14 years imprisonment or more. This would include manslaughter, arson, and fraud over $5,000. First reaction might well be that a conditional sentence for such offences is obviously inappropriate, but first impressions would be wrong.

There have been manslaughter cases where the appropriate sentence has been less than two years imprisonment, and where a conditional sentence is entirely appropriate.

Manslaughter can be close to murder, but it can also be close to unintentional accident with far greater consequences than normally expected. So too, the sentence for arson can have great variations depending on the circumstances. And fraud over $5,000 is still fraud even if the perpetrator repents and makes restitution, but such factors might well lead to a sentence of less than two years.

The proposed changes now before Parliament would not remove the court's discretion to impose a sentence of under two years, but the sentence must be served in jail. There will be an increase in the cost of maintaining offenders in prison and a likely increase in recidivism.

It makes little sense to incarcerate offenders in ever more expensive jails and prisons, if an available alternative is allowing the offender to continue as a productive citizen, supporting himself and others.

The legislation is moving society in the wrong direction. Instead of restricting the application of conditional sentences, Parliament should be expanding the circumstances under which they might be available. Instead of limiting its use to sentences of less than two years, perhaps a three-year limit would be appropriate. And perhaps the number of offences carrying minimum sentences could be reduced, thus paving the way to greater use of this unique sentencing tool.

Charles Huband is a former Manitoba Court of Appeal judge and past leader of the Manitoba Liberal party.

Republished from the Winnipeg Free Press print edition November 5, 2011 A18

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