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The Changing Face of Conditional Sentencing
2. The Conditional Sentence: A Canadian Approach to Sentencing Reform (continued)
2. The Conditional Sentence: A Canadian Approach to Sentencing Reform (continued)
2.7 Framing Sentencing Policy as Reflected by Proulx
When reading Proulx, there is a real sense of trying to turn the clock back.. That is, its author is asking questions about how s.742.1 and its related provisions might be fitted into the Code’s sentencing scheme after it has already been placed there. At the end of the day, we seemed to have returned to a time when people were arguing for a new intermediate sanction - one that would not be restricted to the purely rehabilitated focus of probation, one which would have some penal bite to it, but one which would avoid, at least in the first instance, incarceration. This is a legitimate argument. But it ought to be made to a legislature, not a court, where its resolution might carry with it a guarantee of resources to ensure success, or at least a good chance at success.
After Proulx, we have a new intermediate sanction. It bears some resemblance to intensive probation and some resemblance to judicially-imposed instantaneous parole. It can be suspended and revoked without regard for proof beyond a reasonable doubt in relatively expeditious fashion. Certainly, this has advantages over a sentencing landscape that does not include a Proulx-shaped conditional sentence. However, once can predict certain implications that will follow Proulx:
- there will be fewer conditional sentences;
- conditional sentences will be of longer duration;
- they will contain more restrictive conditions especially more house arrest
- there will be less intervention by appellate courts;
- proven breaches will result in more incarceration for longer periods.
While Lamer, C.J.C. was concerned in Proulx to ensure that the conditional sentence did not widen the net by moving move into an area previously occupied by non-custodial sanctions, the resulting sanction may have widened the net at the other end. Moreover, there is no reason to expect that the resources required to supervise this new intermediate sanction with restrictive conditions will be provided.
Going back to the original enigma (when should a sentence of imprisonment not be served in prison), the answer may lie in the recognition that the decision between a conditional sentence and a sentence of imprisonment is about denunciation. The tilt should be towards a conditional sentence unless the denunciatory objective outweighs the reformative ones. As result, the important questions are:
- Was the specific offence, although of a type that ordinarily requires denunciation, committed in circumstances that diminish the need for denunciation;
- Are there personal circumstances which make it unfair to the offender or an undue hardship on others to require the offender to carry the denunciatory message; or
- Are there circumstances that suggest that the denunciatory message can be conveyed in some way other than incarceration?
Whether this approach is reconcilable with Proulx and whether it will provide a better analytical framework for judges is worthy of debate. Without a clearer framework and with deference restricting appellate review, offenders are at the mercy of how a particular trial judge characterizes the gravity of the offence and the risk of re-offending presented by the offender. In carrying out the complex balancing tasks discussed in Proulx, judges must be cautious that inherent biases do not privilege certain offenders and disadvantage others. They must also be sensitive to the underlying parliamentary direction to move away from incarceration as an easy and prevalent response whenever the pre-conditions of s.742.1, in conformity with the principles and objectives of sentencing, permit it.
