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The Changing Face of Conditional Sentencing
3. Conditional Sentences, Restorative Justice, Net-widening and Aboriginal Offenders
- 3.1 Net Widening
3. Conditional Sentences, Restorative Justice, Net-widening and Aboriginal Offenders
Kent Roach[97]
Professor of Law and Criminology, University of Toronto
Introduction
The Supreme Court’s six recent decisions in conditional sentencing cases provide a good opportunity to reflect on conditional sentences as one of the most important and controversial innovations in sentencing in decades. The cases themselves do not answer all the questions and they sometimes point in ambiguous and even contradictory directions. This is not surprising because conditional sentences are themselves quite Janus-faced. They are criticized by some as a slap on the wrist for those who should be punished severely and as a glorified probation order. On the other hand, they are criticized as an intrusive form of net-widening imposed on offenders who would never have gone to prison.
The Supreme Court offers some answers to both these criticisms but the result is something of an unsatisfying saw off. In an attempt to make conditional sentences meaningful and to distinguish them from probation orders, the Court has encouraged the use of punitive conditions such as house arrest and curfews and onerous restorative conditions such as treatment orders. It has also authorized trial judges to order conditional sentences that are longer than equivalent jail terms and has created a new presumption that offenders will be jailed upon proof of breach for the duration of the conditional sentences. These factors may make conditional sentences more meaningful, but they may also contribute to net widening and even the eventual imprisonment of offenders serving conditional sentences.
At the same time, the Court has probably not convinced critics (and perhaps itself) that conditional sentences are a severe enough sanction for serious crimes. Although the Court rejected Crown arguments that conditional sentences are an inherently disproportionate response to serious crimes such as sexual assault and dangerous driving causing death, it did indicate that the need to deter and denounce such crimes can justify the use of imprisonment. This aspect of the Court’s decision may also increase net widening by reducing the opportunities to use conditional sentences as true alternatives to jail. As such I am not optimistic that conditional sentences will reduce reliance on imprisonment and in particular the overincarceration of Aboriginal people. Indeed, there is even a danger that conditional sentences will unintentionally help increase the overincarceration of Aboriginal people and other offenders.
Another important feature of the conditional sentence cases is the Court’s embrace of restorative justice as a sentencing approach which justifies the use of conditional sentences. The reliance on restorative justice adds to the ambiguity and complexity of the conditional sentence jurisprudence because restorative justice has not traditionally been seen as a sentencing philosophy and it means different things to different people. There is also a danger that the Court’s understanding of restorative justice and its equation of the use of restraint in imprisonment with the use of onerous restorative conditions in conditional sentences will, when combined with the unwillingness of the Court to use conditional sentences in the most serious cases, also increase netwidening and perhaps the overincarceration of Aboriginal people.
The first part of this brief discussion paper will examine the issue of net widening. The second part will then examine how the Court has approached the use of conditional sentences in cases of serious crimes, including its understandings of proportionality, denunciation and deterrence. The third part will examine the Court’s understanding of restorative justice. The fourth part will then reflect on the possible effects of the Court’s conditional sentencing jurisprudence on Aboriginal offenders.
3.1 Net Widening
I take net widening to refer to any process in which offenders are subject to more intrusive sanctions than before. Thus net widening would occur if offenders who would be fined or subject to a probation order are now subject to a conditional sentence. It would also occur should an offender who would not normally be imprisoned be sent to jail because of a breach of a conditional sentence order or be jailed for a longer period of time than if he or she had never been subject to a conditional sentence order. This may be a slightly wider definition of net widening than used by others but I believe it is one that makes sense for policy-makers.
The Canadian experience with conditional sentences strongly suggests conditional sentences have resulted in net widening.[98] In the first two years of their existence, over 28,000 conditional sentences were ordered.[99] It is clear that prison populations did not decrease by such a large number even though conditional sentences were defined as sentences of imprisonment that should be served under strict conditions in the community.
At one level, the Court has responded to concerns about net widening in its recent conditional sentence cases. The Court has attempted to define conditional sentences as a tough sanction just short of imprisonment. Hence Chief Justice Lamer has stated that conditional sentences must be distinguished from probation by punitive conditions such as house arrest and strict curfews. He added:
There must be a reason for failing to impose punitive conditions when a conditional sentence order is made. Sentencing judges should always be mindful of the fact that conditional sentences are only to be imposed on offenders who would otherwise been sent to jail. If the judge is of the opinion that punitive conditions are unnecessary, then probation, rather than a conditional sentence, is most likely to be appropriate. [100]
The Court has made an admirable attempt to situate conditional sentences at the harsh end of the scale of intermediate sanctions short of imprisonment. If courts follow this advice, then there should be a reduction in the use of conditional sentences and an increase in the use of probation orders and other less severe sanctions. Conditional sentences should be reserved for serious crimes that require onerous restorative and punitive conditions, but not actual imprisonment.
It is my view that the above scenario is overly optimistic for a variety of reasons. As will be discussed in the second part of this discussion paper, the Court has sent a message that conditional sentences will rarely be appropriate for serious offences which require denunciation and deterrence. It is in these cases that conditional sentences could most often be a genuine alternative to imprisonment. The caution about using conditional sentences in the most serious cases decreases the opportunities for using conditional sentences as true alternatives to significant prison terms.
Another concern is that when conditional sentences are used, the Court has written a virtual prescription for net widening. The Court has held that the length of a conditional sentence can be longer than an actual term of imprisonment. This may be acceptable if conditional sentences are used as real alternatives to imprisonment, but if they are not, it means that offenders will be subject to conditions for a longer duration of time than a probation order. This in itself is net widening. It also increases the possibility of a breach. Next the Court instructs trial judges that punitive conditions such as house arrest and curfews “should be the norm, not the exception”
.[101] This again increases the chance of breach especially in those provinces which employ electronic monitoring which make such conditions enforceable. To be fair, however, it should be noted that the Court also warned trial judges that “conditions will prove fruitless if the offender is incapable of abiding by them, and will increase the probability that the offender will be incarcerated as a result of breaching them.”
[102] This and the Court’s comment about the need for enforceable conditions, however, should be seen more against the backdrop of direct imprisonment as an alternative.
Finally, and as will be discussed in the third part of this discussion paper, the Court’s emphasis on restorative justice also has the potential to contribute to net widening by encouraging judges to impose conditions designed to rehabilitate the offender and provide reparation for the victim and the community. These conditions may be quite intrusive and this again increases the possibility of breaches. Thus the net cast over offenders subject to conditional sentences is long and thick. The likelihood of breaches increase with the severity and duration of conditions. In its recent cases, the Supreme Court has sent clear messages to trial judges to increase the length and severity of conditional sentences and to imprison offenders who breach the conditions.
The severe even draconian breach provisions also contribute to net widening. Those arrested for a breach face a reverse onus on bail. They also have an onus to demonstrate a reasonable excuse for the breach. Finally, the breach only has to be proven on a balance of probabilities and can be established on the basis of hearsay evidence such as a parole officer’s report. Although the judge has a wide range of disposition options under s.742.6(9) once a breach has been established, the Supreme Court has effectively created a presumption for the most severe of the possible dispositions. Lamer C.J. has stated that “where an offender breaches a condition without reasonable excuse, there should be a presumption that the offender serve the remainder of his or her sentence in jail. This constant threat of incarceration will help to ensure that the offender complies with condition imposed…It also assists in distinguishing the conditional sentence from probation by making the consequences of a breach of condition more severe.”
[103] Remember that the length of the conditional sentence will be longer than if the offender went directly to jail. This is a recipe for net widening.
- [97] Professor of Law and Criminology, University of Toronto. I represented Aboriginal Legal Services of Toronto in R. v. Gladue (1999), 23 C.R. (5th) 197 (S.C.C.) and R. v. Wells (2000), 30 C.R. (5th) 254 (S.C.C.). The views expressed here are my own.
- [98] D. Cole,
“What a Mesh We’re In: Conditional Sentences After the First Three Years”
(Regional Seminar of the Ontario Court of Justice, Fall 1999) [unpublished]. - [99] J. Roberts,
“The Hunt for the Paper Tiger: Conditional Sentencing After Brady”
(1999) 42 Crim. L.Q. 38. - [100] R. v. Proulx (2000), 30 C.R. (5th) 1 (S.C.C.) at para. 37.
- [101] Ibid. at para. 36.
- [102] Ibid. at para. 117.
- [103] Ibid. at para. 39.
