Backgrounder: Conditional Sentencing Reform Bill

While Canada’s conditional sentencing regime has generally worked well and garnered praise from sentencing experts around the world, the federal government recognizes that reforms can be made that will help strengthen confidence in the sanction and the administration of justice.

The Government of Canada has introduced legislation that would create a presumption against the use of conditional sentences for serious offences. Judges would have to set out in writing the exceptional circumstances that led them to impose a conditional sentencing order despite the presumption.

Understanding Canada ’s Balanced Approach to Sentencing

Over 25 years of sentencing reform initiatives came to fruition when Parliament passed Bill C-41 in 1995 – landmark legislation that enacted a statement of sentencing purposes and principles to help guide sentencing judges. The fundamental principle in this statement is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.

Through other principles, Parliament placed a major emphasis on a “least restrictive measures” approach, with direction to use incarceration only where community sentencing alternatives are not considered feasible. Parliament was concerned with the overuse of incarceration as a means of addressing crime in Canada , in particular given the historic overrepresentation of aboriginals in the criminal justice system.

The Government’s approach to criminal justice, as guided by the principles developed in Parliament, is a balanced one. It includes tough measures for high-risk, violent offenders, but encourages the appropriate use of community alternatives for offenders convicted of less serious crimes.

Understanding the Conditional Sentence

The conditional sentence, which was designed to provide a tool for the implementation of the sentencing principles outlined by Parliament, was one of the most innovative aspects of Bill C-41. Decisions from the Supreme Court of Canada have also provided guidance on the application of conditional sentences.

The conditional sentence is a term of imprisonment that may be served in the community. Strict criteria must be met to impose a conditional sentence:

• the sentence cannot exceed two years less a day – which excludes offenders convicted of the most serious crimes, who are serving their sentences in a penitentiary;
• the offence committed cannot carry a mandatory minimum penalty;
• the judge must be convinced that public safety will not be threatened; and,
• the conditional sentence must be consistent with the sentencing principles in the Criminal Code.

Only if these conditions are met may a judge impose a conditional sentence. But even if they are, the judge still has discretion to send the offender to prison.

An offender serving a conditional sentence must abide by a number of conditions. These compulsory conditions include reporting to a probation officer who will ensure that the order of the courts is followed. As well, the offender must comply with a number of other conditions that are especially constructed for each individual case. These conditions may require the offender to remain at home (except for work or medical emergencies) or to stay at home in the evening and during weekends. The offender may also be required to pay back the victim for money stolen, perform community service or attend a treatment program.

The offender will be arrested and brought back to court for a hearing, if the conditions are violated. The judge has the power to send the offender to prison for the remainder of the sentence.

Restricting the Use of Conditional Sentences

Federal, provincial and territorial Ministers Responsible for Justice affirmed in January 2005 that conditional sentences are an appropriate sentencing tool in many cases but expressed the need for timely reforms to identify some limits to the use of such sentences in regard to serious and violent offences.

In response, the Government of Canada has introduced reforms, developed in consultation with the provinces and territories, that would create a presumption against the use of conditional sentencing orders for serious personal injury offences (as defined by the Criminal Code), terrorist activities, offences related to organized crime, and any other offence where the individual case is so serious that the need to condemn the act – and not use a conditional sentence – takes precedence over any other sentencing objective. The presumption would prevent the court from imposing a conditional sentence unless it is of the opinion that there were exceptional circumstances relating to the offence or the offender that would justify granting a conditional sentence. In addition, the court would be required to state in writing what those exceptional circumstances were.

A broad range of offences would be covered. A serious personal injury offence is any indictable offence punishable by ten years or more in prison and whereby the offender:

• Uses or attempts to use violence against another person; or,
• Endangers or is likely to endanger the life or safety of another person, or inflict severe psychological damage on that individual.

It also includes all sexual assault offences.

Other Amendments to Enhance the Effectiveness and Efficiency of the Conditional Sentencing Regime

Other amendments would allow the suspension of a conditional sentencing order pending appeal, thereby preventing such orders from running out before an appeal is fully dealt with.

The proposed reforms would also clarify the law to ensure that existing mandatory minimum penalties are applied for those convicted of impaired driving causing bodily harm or death. As well, courts would be able to make consecutive orders of prohibition from operating a motor vehicle.

These amendments, identified through consultations with the provinces and territories, as well as other key stakeholders, would help enhance the overall effectiveness and efficiency of the conditional sentencing regime.

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Department of Justice
October 2005