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The Changing Face of Conditional Sentencing
3. Conditional Sentences, Restorative Justice, Net-widening and Aboriginal Offenders (continued)
3. Conditional Sentences, Restorative Justice, Net-widening and Aboriginal Offenders (continued)
3.2 Serious Crimes: Proportionality, Deterrence and Denunciation
Many of the Crowns in the conditional sentence cases argued that conditional sentences were a disproportionately lenient response to serious crimes such as sexual assault and dangerous driving causing death. Their arguments reflected public concerns about the leniency of conditional sentences and the status of proportionality as the fundamental principle of sentencing. The Crowns lost on this point and the Supreme Court made clear that the only way that Parliament can exclude particular offences from conditional sentences is by amending the Code either to exclude the offence from the regime or by imposing a mandatory minimum term of imprisonment. The Court has also clearly indicated that 718.1 of the Criminal Code does not reflect a crude form of “just deserts” that ties punishment solely to the crime committed. Such an approach would collapse the distinct sentencing purposes of proportionality and denunciation[104] and ignore the reference in s.718.1 to the offender’s degree of responsibility as well as the gravity of the offence. In rejecting Crown arguments that conditional sentences would not be a proportionate response to certain serious crimes, Chief Justice Lamer has strongly and in my view rightly concluded that such an approach “focuses inordinately on the gravity of the offence and insufficiently on the moral blameworthiness of the offender. This fundamentally misconstrues the nature of the principle. Proportionality requires that full consideration be given to both factors.”[105]
The Crowns may have lost the proportionality war only to win significant battles on the issues of deterrence and denunciation. In RNS[106], an unanimous Court ruled that a 9 month conditional sentence was insufficient to deter sexual touching and sexual assault of a child. Four judges (admittedly in dissent) were of the same view in the similar case of LFW[107]and the decision to uphold the conditional sentence was related to deference to the trial judge, the fact that the offender had not re-offended in 25 years since the assault and the 21 month duration of the conditional sentence. In Wells[108], an unanimous Court upheld a 20 month imprisonment sentence for sexual assault as based on the need to deter and denounce such a crime. In Proulx, the Court again stressed general deterrence and denunciation in upholding a 18 month prison sentence for dangerous and drunken driving causing death and bodily harm. The message implicit in these decisions seems to be that imprisonment is well suited and perhaps necessary to deter and denounce serious crimes.
The Court has, however, left the door open a crack for trial judges to demonstrate that restorative sanctions can send a message to the community that both deters and denounces serious crimes. In a recent post-Proulx case, Vancise J.A. of the Saskatchewan Court of Appeal has concluded that punitive conditions in a conditional sentence can deter and denounce drug trafficking.[109] As will be suggested in the third part of the paper, some forms of restorative justice may not only be a proportionate form of accountability for the offender but may help denounce and deter some crimes in some communities. As such the Court’s connection of imprisonment with deterrence and denunciation is somewhat less absolute than would have resulted had the Crowns been successful in arguing that imprisonment is the only proportionate response to serious crimes. Nevertheless, trial judges and policymakers have some work to do in displacing the Supreme Court’s implicit assumption that imprisonment is necessary to deter and denounce serious crimes.
Given the Supreme Court’s recent pronouncements, is it necessary to amend the legislation to prevent the use of conditional sentences to respond to serious crimes such as sexual assault? At a superficial level, the answer may be yes because the Court has refused to declare that conditional sentences will always be a disproportionate response to such serious crimes. It has left open the possibility that trial judges can order conditional sentences in serious cases but only if they are satisfied 1) that the conditional sentence will respond to the gravity of the offence and the offender’s degree of responsibility; 2) that it will achieve all the purposes of punishment including the deterrence and denunciation of the crime and 3) that the public will not be endangered by the prospect of the offender re-offending while on the conditional sentence. In the vast majority of serious cases, trial judges may conclude that all of the above requirements are not satisfied. A legislative amendment would, however, prevent trial judges from using conditional sentences in those exceptional cases where the above requirements are all satisfied. In such exceptional cases, the community, including Aboriginal communities, may often have made a real commitment to deal with the crime seriously. Thus an amendment preventing the use of conditional sentences in serious cases would achieve little, but frustrate trial judges and communities in those rare cases where they are both convinced that a conditional sentence is the appropriate response to a serious crime.
3.3 Restorative Justice
An important and intriguing feature of these conditional sentencing cases (and Gladue[110]) is the Supreme Court’s acceptance of restorative justice as a sentencing philosophy and one that supports the use of conditional sentences. It is now no longer possible to understand the jurisprudence of sentencing without understanding restorative justice as understood by the Supreme Court.
Restorative Justice as a Sentencing Philosophy
Restorative justice is most often used to describe informal and non-adjudicative
forms of dispute resolution such as victim offender mediation, family conferences and Aboriginal forms of justice which give victims, offenders and the community decision-making power. The Law Commission of Canada has recently articulated three fundamental principles of restorative justice. They are 1) crime is a violation of a relationship among victims, offenders and the community 2) restoration involves the victim, the offender and community members and 3) a consensus approach to justice.[111] Restorative justice taken in its pure sense is more a form of diversion than a sentencing philosophy for judges who take their definitions of crime from the Criminal Code and caselaw, who hear submissions in the context of an adversarial system of justice and who, in theory, do not act on the basis of consensus. Restorative justice as employed by judges at sentencing may be more coercive and more conducive to net widening than when employed as a form of diversion.
The emergence of restorative justice as an approach to sentencing has been quick and dramatic. One need only to re-read the 1987 report of the Canadian Sentencing Commission to see how little impact restorative justice played in that important discussion of sentencing reform. The 1988 Daubney Committee did, however, express interest in restorative justice and this eventually found its way in the 1996 sentencing reforms in s.718(e) and (f) which provide that sentences may provide “reparations for harm done to victims or to the community and to promote a sense of responsibility in offenders, and acknowledgement of the harm done to victims and the community.” With some notable exceptions[112], most of those who contributed to the voluminous commentary that accompanied Bill C-41 did not see these provisions as a revolutionary new change in sentencing or one that ushered in restorative justice as a new paradigm for sentencing.
The Supreme Court, however, took these new provisions very seriously. In Gladue, Cory and Iacobucci JJ. observed that while the other objectives in s.718 were “in part, a restatement of the basic sentencing aims”, ss.718(e) and (f) are new and along with rehabilitation (s.718(d)):
…focus upon the restorative goals of repairing the harm suffered by individual victims and by the community as a whole, promoting a sense of responsibility and an acknowledgement of the harm caused on the part of the offender, and attempting to rehabilitate or heal the offender. The concept of restorative justice which underpins paras (d), (e), and (f)….involves some form of restitution and reintegration into the community. The need for offenders to take responsibility for their actions is central to the sentencing process…Restorative sentencing goals do not usually correlate with the use of prison as a sanction. In our view, Parliament’s choice to include (e) and (f) alongside the traditional sentencing goals must be understood as evidencing an intention to expand the parameters of the sentencing analysis for all offenders. The principle of restraint expressed in s.718.2(e) will necessarily be informed by this reorientation. [113]
Most of this crucial passage is quoted with approval by Lamer C.J. in Proulx[114], who adds that “Parliament has mandated that expanded use be made of restorative principles in sentencing as a result of the general failure of incarceration to rehabilitate offenders and reintegrate them into society. By placing a new emphasis on restorative principles, Parliament expects both to reduce the rate of incarceration and improve the effectiveness of sentencing.”
[115] These are crucial passages which deserve close analysis.
The Court interprets ss.718(e) and (d) as adding something genuinely new to sentencing and that is a desire to achieve restorative justice. The Court in Proulx defines restorative justice as attempts “to remedy the adverse effects of crime in a manner that addresses the needs of all parties involved. This is accomplished, in part, through the rehabilitation of the offender, reparations to the victim and to the community, and the promotion of a sense of responsibility in the offender and acknowledgement of the harm done to victims and to the community.”
[116] Restorative justice has become so important in these recent conditional sentence cases that the Court has articulated the balance to be achieved between punitive and restorative goals as the key feature in determining whether a conditional sentence will be appropriate.
The Supreme Court has gone beyond the New Zealand Court of Appeal in its recognition and embrace of restorative justice. This is ironic because New Zealand with its use of Maori inspired family conferences is in many ways the home of the recent movement towards restorative justice and has institutionalized restorative justice to a greater extent than Canada. Nevertheless, its highest court, the New Zealand Court of Appeal, has given restorative justice more limited recognition than the Supreme Court of Canada. In the Clotworthy case, it overturned a restorative sanction that would have given the victim of a violent robbery a $15,000 compensation order for cosmetic surgery to repair an embarrassing scar caused by six stab wounds in favour of a four year imprisonment sentence designed to deter others from offending.[117] The New Zealand Court of Appeal concluded that “a wider dimension must come into the sentencing exercise than simply the position as between victim and offender”
including “the public interest in consistency, integrity of the criminal justice system and deterrence of others.”
[118] Although the New Zealand Court of Appeal added that its decision was not based on “any general opposition to the concept of restorative justice”[119], it was hardly a ringing endorsement as compared to Gladue and Proulx.
- [104] See R. v. M.(C.A.) (1996), 46 C.R. (4th) 269.
- [105] Proulx, supra note 4 at para. 83 [emphasis in original].
- [106] R. v. R.N.S. (2000), 30 C.R. (5th) 63 (S.C.C.).
- [107] R. v. L.F.W. (2000), 30 C.R. (5th) 73 (S.C.C.).
- [108] R. v. Wells (2000), 30 C.R. (5th) 254 (S.C.C.).
- [109] R. v. Laliberte, [2000] S.J. No.138
- [110] R. v. Gladue, supra note 1.
- [111] Law Commission of Canada, From Restorative Justice to Transformative Justice: Discussion Paper (Ottawa: Law Commission of Canada, 1999).
- [112] See E. Bayda, “The Theory and Practice of Sentencing: Are They On the Same Wavelength? Bill C-41 and Beyond” in P. Healy & H. Dumont, Dawn or Dusk in Sentencing (Montreal: Les Editions Themis, 1997) at pp. 3-20; see also K. Jull, “Reserving Rooms in Jail: A Principled Approach” (1999) 42 Crim. L.Q. 67.
- [113] Gladue, supra note 1 at para. 43.
- [114] Proulx, supra note 4 at para. 19.
- [115] Ibid. at para. 20.
- [116] Ibid. at para. 18.
- [117] See J. Braithwaite, “Restorative Justice: Assessing Optimistic and Pessimistic Accounts” in M. Tonry, ed., Crime and Justice A Review of Research (Chicago: University of Chicago Press, 1999) at 1-127.
- [118] R. v. Clotworthy New Zealand C.A. 114/98 (29 June 1998).
- [119] Ibid.
