Conditional Sentencing in Canada: an Overview of Research Findings

4. Conditional Sentencing and Public Opinion

4. Conditional Sentencing and Public Opinion

Introduction

4.1 Why are the views of the Public Important?

There are several reasons for paying particular attention to the views of the public with respect to conditional sentencing. First, the success of any sanction depends, in part at least on the support of the general public. If members of the public are implacably opposed to a particular sanction or indeed a provision in the Criminal Code, confidence in the administration of justice will be undermined. There is a need therefore, to ensure a certain level of public support. Second, according to Section 718 of the Criminal Code, the fundamental purpose of sentencing is to: "contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just peaceful and safe society ". The nature of the conditional term of imprisonment (a prison term served in the community; see Gemmell, 1997) carries the danger of attracting public skepticism. The public may see the conditional sentence as evidence of leniency in sentencing, and the public already holds the view that sentences are too lenient.[6] Part of this view of sentencing severity is founded on a misperception of the true severity of the system.[7] In addition, inaccurate media coverage of conditional sentencing has represented the conditional sentence as a lenient disposition, one that is simply the equivalent of a term of probation.

Another reason for wanting to know more about public opinion in this area is that several appellate decisions as well as trial court judgements have cited the importance of considering the views of the public. Finally, the results of the survey of the judiciary summarized in Chapter 2 of this report revealed that a significant number of judges consider the views of the community before making a conditional sentence order.[8] This finding underlines the importance of understanding the nature of public reaction to the new sanction.

Assertions are frequently made about the nature of public opinion in the absence of systematic data. Fortunately, two representative surveys of the Canadian public have now been conducted on the issue of conditional sentencing. We are in a position therefore to draw some firm conclusions about the state of public knowledge and opinion with respect to the new sanction.

The two surveys took place two years apart. The first was conducted in the province of Ontario by researchers at the Centre of Criminology, University of Toronto. Marinos and Doob (1999) explored the perceptions of residents of Ontario with respect to the new sanction. The second survey was conducted by the Angus Reid group and employed a national sample. This survey also included questions about public knowledge as well as attitude (see Sanders and Roberts, in press). Taken together, the results from the two surveys shed important new light on the views of the public with respect to conditional sentencing. We shall begin by reviewing the findings relating to public knowledge.

4.2 Public Knowledge of Conditional Sentencing

By the time that the Angus Reid survey was conducted,two years had elapsed under the conditional sentencing regime. Canadians had had considerable exposure to the new sanction. However, almost all the information provided about conditional sentencing had come through the news media. It would be reasonable to expect Canadians to be somewhat confused about the nature of a conditional sentence of imprisonment.

Respondents were given a forced choice alternative question. They were provided with three definitions, one that defined bail, a second parole, and the third a conditional sentence of imprisonment. Given the choice of definitions, more respondents were wrong than right. Just over four respondents in ten (43%) of the sample correctly identified conditional sentencing. Almost as many respondents chose the definition of parole, while 13% wrongly chose the bail definition (see Table 4.1).

Table 4.1: Public Knowledge of Conditional Sentencing (Canada, 1999)

Percentage of sample choosing definition of:
Parole 38%
Bail 13%
Conditional sentence (correct response) 43%
Don’t know 5%
Total 100%

Source: Sanders and Roberts (in press).

If the respondents were simply guessing, we would expect approximately one-third to be correct. Forty-three percent is not significantly higher than chance.[9] Accordingly it seems safe to conclude that Canadians are somewhat confused about the new sanction. Public legal education with respect to the new sanction would appear to be a priority.

Since the public is confused about the definition of conditional sentencing, it is perhaps not surprising that they see little difference between the new sanction and a term of probation. This result emerged from analysis of the Ontario survey conducted by Marinos and Doob. These researchers found that while the members of the public do distinguish between imprisonment and “intermediate” sanctions served in the community, people failed to make a distinction between a conditional sentence of imprisonment and a term of probation. This is an important finding. If the public perceive a conditional sentence to be no more severe than a term of probation, they are likely to react negatively when learning that a conditional sentence was imposed on an offender convicted of a crime of violence. This in turn is likely to increase public criticism of the judiciary.[10]

4.3 Level of Public Support for Conditional Sentencing

It is likely that public support for conditional sentencing is going to vary according to the seriousness of the crime for which the conditional sentence is imposed. Absent exceptional circumstances, the public is unlikely to support the imposition of a conditional sentence in serious personal injury offences, or crimes of sexual aggression. One of the purposes of the two surveys was to provide some preliminary indication of the degree of public support for conditional sentencing.

In their study using a sample of Ontario residents, Marinos and Doob presented respondents with three brief descriptions of offences: break and enter, sexual assault and assault causing bodily harm.

Table 4.2 shows the level of public support for conditional sentencing in the three cases. As can be seen, support is highest for the assault and lowest for the sexual offence. Almost three-quarters of the sample favoured a conditional sentence over imprisonment for the assault case.[11] These results demonstrate that there is considerable support for conditional sentencing for some offences.

Table 4.2: Public Support for Conditional Sentencing (Ontario, 1997)
Offence: Conventional Imprisonment Conditional Imprisonment Total
Break & Enter 56% 44% 100%
Sexual assault 60% 40% 100%
Assault causing bodily harm 29% 71% 100%

Source: Marinos and Doob (1999).

The national survey conducted in 1999 further explored levels of public support for conditional sentencing. On this occasion, six scenarios describing specific crimes were presented to respondents. Participants were then asked to make a choice between imposing a conditional sentence or a conventional sentence of imprisonment. It is important to note that in this survey and in the one conducted by Marinos and Doob, prior to making their decision between prison or a conditional sentence, all respondents had been given a definition of a conditional sentence. They therefore had a clear idea of what the new sanction entailed.

The offences selected for the 1999 survey were brief summaries of actual cases, including some of the cases that were the subject of appeals to the Supreme Court in the Spring of 1999.

The offence descriptions were as follows:

  1. After drinking heavily, the offender stole a car and drove at a high rate of speed through the city. He lost control of the car and crashed the vehicle. Two people were seriously injured. One person suffered permanent injuries that have had a devastating impact on her life.
  2. The offender was convicted of fraud. He had defrauded his employer of over a quarter of a million dollars. The fraud contributed to the employer’s company going out of business, with the loss of employment for many people.
  3. A lawyer was convicted of stealing from his clients. His victims were in another country and the theft was only discovered through a routine check of their accounts.
  4. A 23-year old man has been convicted of assault causing bodily harm. He hit and broke the nose of a man he had a disagreement with in a local bar.
  5. A man has been convicted of assaulting his wife. She received medical treatment for minor injuries. The man has no previous criminal record.
  6. A man was convicted of several sexual assaults against his 5-year old stepdaughter. The crimes were committed over a period of several years.

Table 4.3 shows the degree of public support for conditional sentencing with respect to the six scenarios. As can be seen, support for conditional sentencing was highest for the assault case, and very low for the offender convicted of sexual assault: only 3% of the sample favoured a conditional sentence in this scenario. It is important to note however that the offence described was a particularly serious instance of sexual assault involving a very young victim and repeated assaults over a protracted period of time, as well as a breach of trust. It is unclear whether the same degree of public opposition to the imposition of a conditional sentence would be found for a conviction for sexual assault occurring between adults and which involved a single incident.

Table 4.3: Public Support for Conditional Sentence (Canada, 1999)
Offence % favouring conventional imprisonment % favouring conditional imprisonment Total
(1) Dangerous driving 75% 25% 100%
(2) Fraud over 71% 29% 100%
(3) Fraud with breach of trust 58% 42% 100%
(4) Assault causing bodily harm 23% 77% 100%
(5) Sexual assault 97% 3% 100%
(6) Assault (domestic) 38% 62% 100%

Source: Sanders and Roberts (in press)

There was substantial support for conditional sentencing in the case of domestic assault (62% choosing conditional sentence over imprisonment), and also the assault causing bodily harm (three-quarters of the sample choosing conditional sentence).