Multi-Site Survey of Victims of Crime and Criminal Justice Professionals across Canada: Summary of Defence Counsel Respondents: Summary of Defence Counsel Respondents
The Criminal Code permits judges to order that sentences of less than two years' imprisonment be served in the community instead of in jail. Conditional sentences may be imposed only when the court is convinced that the offender poses no threat to public safety. They are accompanied by restrictive conditions that govern the behaviour of the offender and strictly curtail his or her freedom. The following sections describe the perspectives of criminal justice professionals on the appropriateness and use of conditional sentences.
Cases Appropriate for Conditional Sentences
Across all respondent categories, there is widespread agreement that conditional sentences are appropriate in non-violent offences. Defence counsel are much more likely than the other respondent groups to think that conditional sentences are appropriate in all offences, in family violence offences, and in offences against the person. See Table 19 for the details.
Defence counsel explained in interviews that conditional sentences are appropriate in eligible cases, that is, in all cases except those where the minimum sentence is more than two years, and where it has been established that the offender is not a threat to public safety.
It was suggested by several defence counsel that conditional sentences are appropriate where the risk of recidivism is zero and where there is good reason to believe that the offender is able and motivated to rehabilitate.
|Victim Services (N=318)||Crown Attorneys (N=188)||Defence Counsel (N=185)||Advocacy Groups (N=47)|
|Family violence offences||5%||16%||32%||17%|
|Offences against the person||6%||15%||34%||15%|
|Where offender is eligible||--||11%||12%||--|
|Depends on case or circumstances||3%||11%||13%||9%|
|No prior record or good rehabilitation prospects||6%||6%||4%||--|
|All offences except most serious||--||--||11%||--|
|Less serious violent offences||--||--||2%||--|
|If victim is comfortable with sentence||3%||--||--||--|
|Never or rarely||2%||7%||--||6%|
Note: Respondents could provide more than one response; totals sum to more than 100%.
Consideration of Victim Safety in Conditional Sentences
As Table 20 shows, the vast majority (93%) of Crown Attorneys surveyed usually request conditions for the victim's safety in conditional sentences. Similar proportions of defence counsel and judges surveyed usually agree to and grant such requests. Almost all defence counsel explained that they agree to conditions because the protection of victim safety is a valid sentencing principle. In interviews, they expanded on this idea, citing the legal requirement to consider the public safety and the fact that the presumption of innocence no longer applies. However, several defence counsel reported that they usually agree to conditions because they will not receive a conditional sentence without them, and several said that they agree if the conditions are requested by or are in the best interests of the client, do not unduly restrict the offender (e.g., from access to his belongings or home), and are legitimately connected to the offence and the victim.
|Crown Attorneys (N=188)||Defence Counsel (N=185)||Judiciary (N=110)|
|Do you generally request conditions for the victim's safety?||Do you generally agree to conditions for the victim's safety?||Do you generally grant conditions for the victim's safety?|
Note: Totals may not sum t 100% due to rounding.
In recent years, restorative justice approaches have become more widely used at all stages of criminal proceedings. Restorative justice considers the wrong done the person as well as the wrong done to the community. Restorative justice programs involve the victim(s) or a representative, the offender(s), and community representatives. The offender is required to accept responsibility for the crime and take steps to repair the harm he or she has caused. In this way restorative approaches can restore peace and equilibrium within a community and can afford victims of crime greater opportunities to participate actively in decision-making. However, concerns have been raised about victim participation and voluntary consent, and support to victims in a restorative process. This study included several exploratory questions to discover the extent to which criminal justice professionals have participated in restorative justice approaches and their views on the appropriateness and effectiveness of these approaches.
Participation in Restorative Justice Approaches
Of the various respondent groups, defence counsel are most likely to have participated in a restorative justice approach; close to 60% of defence counsel surveyed indicated having ever participated in a restorative justice process. Please refer to Table 21.
Respondents reported having been involved in various restorative approaches, including sentencing and healing circles, diversion, mediation, and community and youth justice forums. As Table 22 below shows, defence counsel are slightly more likely to have participated at the sentencing stage. A significant proportion of defence counsel who have participated also indicated having taken part in restorative processes after charges had been laid but before sentencing.
|Victim Services (n=38)||Crown Attorney (n=81)||Defence Counsel (n=107)||Police (n=118)||Advocacy Groups (n=17)|
Note: Respondents could provide more than one response; totals sum to more than 100%.
Table 23 below shows the most common explanations for respondents' lack of involvement in restorative justice. Across all respondent groups except victim services, the most common reason is that restorative approaches are not available or not yet widely used in their province. Several defence counsel pointed out in interviews that restorative justice tends to be used primarily in rural, northern, or remote Aboriginal communities. It was even suggested that there may be a perception among some members of the police, the Crown Attorney, and the bench that restorative justice is only to be applied in cases involving Aboriginal people. A few respondents said that restorative justice is only used for young offenders.
A sizeable proportion of respondents in all groups explained that restorative justice had never come up as an option or that they had never had a case suitable for restorative justice. Other common explanations for respondents' non-participation in restorative justice were that such approaches do not protect the victim adequately (a particular concern for advocacy organizations and Crown Attorneys) and that such approaches do not act as a deterrent. Among defence counsel, 5% expressed concern that restorative justice approaches do not adequately protect the accused, and the same proportion reported that such options are only available for youth. Twenty percent of judges explained that restorative justice had never been presented to them as an option by the Crown Attorney or by defence counsel.
Victim Involvement in Restorative Justice
There was disagreement both within and across the survey respondent categories on the extent to which victims are involved in the decision to use restorative justice approaches, as Table 24 demonstrates.
|Victim Services (n=38)||Crown Attorneys (n=81)||Defence Counsel (n=107)||Police (n=118)||Advocacy Groups (n=17)|
|Victim is always involved||32%||52%||44%||80%||59%|
|Victim is sometimes involved||45%||38%||43%||14%||24%|
|Victim is seldom involved||8%||5%||9%||6%||12%|
Note: Some columns do not sum to 100% due to rounding.
Defence counsel are evenly split between those who think that victims are always involved and those who believe that they are only sometimes involved. Similar disagreement was evident among defence counsel interviewees. Small numbers of defence counsel who were interviewed reported that cases do not proceed through restorative justice unless the victim approves it. They also said that restorative approaches are sometimes used even without the victim's consent simply because these cases are not worth going to court (in these instances, however, the victim is always informed of the decisions). Small numbers of defence counsel added that victims always have the opportunity to participate in restorative justice beyond the initial decision to use the approach but that many victims do not wish to participate.
Cases where Restorative Justice would be most Effective
Crown Attorneys, victim services providers, and judges were asked to comment in interviews on when they believe that restorative justice approaches would be most effective.
Although defence counsel did not comment extensively on restorative justice, a few offered some general remarks in favour of such approaches. They commented that restorative justice can provide an economical option for keeping cases out of court and that they work well if there is a desire to repair personal or community relationships.
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