Judicial Attitudes to Conditional Terms of Imprisonment : Results of a National Survey
2. Results (cont'd)
2.5 Impact of a Conditional Sentence
It is important to note that these are correlational analyses. We cannot establish whether experience with the sanction has changed judges' perceptions, or whether different perceptions of the new sanction lead judges to use the disposition more (or less) often.
One third of judges see a conditional sentence as having same impact as a probation order with the same conditions
Some light on responses to the effectiveness question is shed by responses to another. Respondents were asked whether they thought that a conditional sentence had a different impact on an offender than a probation order with the same conditions. In order to be effective, and to serve as a true replacement for imprisonment, a conditional sentence order should be truly distinct from a probation order. However, a third of the judges believed that a conditional sentence order did not have a different impact. Only one judge in five stated that a conditional sentence definitely had a different impact on the offender (see Table 2.6). This result may explain why some judges are skeptical about the ability of the conditional sentence to achieve some of the goals of sentencing: in terms of its "penal value" or impact on the offender, the conditional sentence is too similar to a term of probation. Not surprisingly, perhaps, judges who had imposed more conditional sentences were more likely to subscribe to the view that conditional sentences had a different impact on an offender.
Response | Percent of judges giving this response |
---|---|
Definitely yes | 21% |
Probably yes | 39% |
Probably not | 27% |
Definitely not | 7% |
I don't know | 7% |
Total | 100% (453) |
2.6 Guidance from Courts of Appeal
Most judges wanted more guidance from their Courts of Appeal
Since the introduction of the new disposition in 1996, all provincial Courts of Appeal have rendered judgements about the appropriateness of conditional sentences. Courts of Appeal have made a significant number of judgements. And, as noted, five conditional sentence cases are now under appeal to the Supreme Court of Canada. Judges were asked whether they thought that they were receiving adequate guidance from their respective Courts of Appeal. Generally speaking, respondents seemed to feel that more guidance was required: only 4% felt that adequate guidance was available for "all cases" a further 32% felt that guidance was available in most cases. The percentage of judges stating that they never received adequate guidance was three times higher than the percentage that responded that they always received adequate guidance (see Table 2.7).
Response | Percent of judges giving this response |
---|---|
Yes, in all cases | 4.4% |
Yes, in most cases | 31.6% |
Yes, in some cases | 26.3% |
Yes, in few cases | 26.5% |
No, never | 11.3% |
Total | 100% (434) |
Responses with respect to the Courts of Appeal would appear to be most positive in Newfoundland (where 50% stated that they received adequate guidance in all or most cases), and least positive in Ontario, where only approximately one-quarter of judges held this view (see Table 2.8).
Province or territory: | All or most cases | Some cases | Few or no cases | Total |
---|---|---|---|---|
NF | 50.0% | 25.0% | 25.0% | 100% (16) |
PEI | 25.0% | 25.0% | 50.0% | 100% (4) |
NS | 47.1% | 11.8% | 41.2% | 100% (17) |
NB | 38.1% | 33.3% | 28.6% | 100% (21) |
QC | 44.8% | 25.4% | 29.9% | 100% (67) |
ON | 26.6% | 25.8% | 47.7% | 100% (128) |
MN | 43.8% | 34.4% | 21.9% | 100% (32) |
SK | 33.3% | 33.3% | 33.3% | 100% (30) |
AB | 44.0% | 14.0% | 42.0% | 100% (50) |
BC | 30.6% | 30.6% | 38.8% | 100% (49) |
YK | 25.0% | 50.0% | 25.0% | 100% (4) |
NWT | 66.7% | 33.3% | 100% (3) |
Note: Percents in italics are based on a very small sample size.
Two qualifications should be borne in mind when considering these trends. First, we have no comparative data. That is, we cannot explore judges' perceptions about the extent of guidance that they receive from Courts of Appeal with respect to other sentencing or trial issues. As well, this survey was conducted in mid-1998. Since then, additional appellate judgements have been handed down, and trial court judges' perceptions of the extent of appellate guidance may have changed. Finally, by the time that this report is published, the Supreme Court may well have provided important guidance with respect to section 742, as a result of the six pending appeals.
2.7 Community/Supervisory Resource Issues
Community resources, particularly adequate supervisory resources, are an important issue for judges considering the imposition of a conditional sentence. Several questions on the survey addressed this issue. Judges seemed somewhat divided on whether they were able to find out what community resources were available: 43% responded that they were able to find out about resources all or most of the time, while 31% stated that they rarely or never were able to find out about such resources (Table 2.9).
Response | Percent of judges giving this response |
---|---|
Yes, all the time | 9.3% |
Yes, most of the time | 34.1% |
Yes, some of the time | 25.9% |
Rarely | 28.4% |
No, never | 2.2% |
Total | 100% (451) |
Judges would impose more conditional sentences if there were more support resources
The importance of the issue of community and supervisory resources can be seen by the next Table 2.10, which shows that fully four out of five judges state that they would be more inclined to impose conditional terms of imprisonment if they could be assured that more resources were available. Judges with experience imposing conditional sentences were marginally more likely to state that they would impose conditional sentence orders more frequently if there were more community resources available (see Table 2.10).
Response | Percent of judges giving this response |
---|---|
Yes | 80.2% |
No | 19.8% |
Total | 100% (439) |
A similar divergence of opinion emerged with respect to the question of supervision. A rather low percentage of respondents (approximately one-quarter) felt that conditional sentence orders are being adequately supervised "all" or "most of the time" A higher percentage (27%) believed that adequate supervision was provided "rarely" or "never". It is worth noting that a third of the respondents chose "don't know" as a response option to this question (see Table 2.11). The following Table 2.11 presents the same data, but excluding the "don't know" respondents.
Response | Percent of judges giving this response |
---|---|
Yes, all the time | 5.5% |
Yes, most of the time | 20.6% |
Yes, some of the time | 13.9% |
Rarely | 21.0% |
No, never | 6.4% |
Don't know | 32.5% |
Total | 100% (452) |
As can be seen in Table 2.12, judges with more direct experience with conditional sentencing were more likely to hold the view that conditional sentences are adequately supervised in their areas. This suggests that confidence in the adequacy of supervision may play a role in whether a conditional sentence is imposed.[2]
Use of the conditional sentence | Yes, all or most of the time | Yes, sometimes | Rarely or never | Total |
---|---|---|---|---|
None | 25.0% | 16.7% | 58.3% | 100% (12) |
Low (1-10) | 34.1% | 17.1% | 48.8% | 100% (129) |
Medium or high (11 times or more) | 43.6% | 23.3% | 33.1% | 100% (163) |
Note: Chi-square =9.04, df=4, Note: 3 cells with E<5, p < .10 Pooling “none” and “low”, Chi-square = 8.56, df=2, p<.05
Judges were asked about the number of available treatment programs (such as substance abuse, anger management, mental health counselling, and drug therapy) in their respective jurisdictions. Almost 40% responded that the number of programs was "rarely" or "never" sufficient. One third stated that the number of programs was adequate for some cases, and a similar percentage felt that the number of programs was adequate for most or all cases (see Table 2.13). The high usage judges were more likely to believe that the number of treatment programs was adequate in their area (Table 2.14).
Response | Percent of judges giving this response |
---|---|
Yes, for all cases | 2.9% |
Yes, for most cases | 27.1% |
Yes, for some cases | 32.0% |
Rarely | 31.0% |
No, never | 7.0% |
Total | 100% (413) |
Use of the conditional sentence | Yes, for all or most cases | Yes, for some cases | Rarely or never | Total |
---|---|---|---|---|
None | 23.5% | 29.4% | 47.1% | 100% (17) |
Low (1-10) | 24.2% | 30.4% | 45.4% | 100% (194) |
Medium or high (11 times or more) | 36.0% | 33.5% | 30.5% | 100% (200) |
Note: Chi-square =11.19, df=4, p=.025
A final question about support programs dealt with the need for additional treatment programs. Specifically, judges were asked to identify needs in light of what already existed in the area. Of the total sample, 281 responded to this question. The most frequently-identified need was for more counselling programs, cited by three-quarters of this group. After counselling, anger management (65%) and alcohol or drug treatment programs were identified as necessary additions.
[2] This too is a correlational finding. However, in this case there is less ambiguity about the direction of causality. Handing down few conditional sentences is unlikely to change perceptions of the adequacy of supervision. The causal mechanism must be in the other direction: having a positive view of the adequacy of supervision enhances the possibility that the judge will impose a conditional sentence.
- Date modified: