Conditional Sentence: A Canadian Approach to Sentencing Reform or, Doing the Time-Warp Again (From The Changing Face of Conditional Sentencing, P 9-23, 2000, Canada Department of Justice)

• NCJ Number: 194109
• Author(s): Allan Manson
• Date Published: 2000
• Length: 15 pages
• Sale Source: Canada Department of Justice
• Publication Format: Book (Softbound)
• Publication Type: Conference Material
• Language: French; English
• Country: Canada
• Note: See NCJ-194108, and NCJ-194110-115 for related chapters.

Annotation

This document examines the current state of the law of conditional sentences.

Abstract

One major purpose of conditional sentences is to reduce the use of incarceration. The plan of the Canada Supreme Court was to assume the role of sentencing reformer and set out to develop an intermediate sanction. It became essential for the Supreme Court to ensure that the sanction be both noncustodial and more intensive or harsher than the pre-existing probation scheme. The conditional sentence is served in the community but must be more punitive than probation. There was a need to introduce restorative principles while at the same time temper the new sanction with the concern that it also served the retributive aspects of sentencing. A number of specific controversies needed to be resolved. These included the potential scope of conditional sentences, the judge’s initial or threshold decision, and the second stage of the decision. During the second stage of the decision, the judge must determine if service in the community endangers the safety of the community; if service in the community is consistent with the purpose and principles of sentencing; and if service in the community is justified, what should the duration be and what conditions should be attached to it. One aspect of the conditional sentence that receives little attention is the complex breach mechanism. Breaches of conditional sentences can be proven on a balance of probabilities, and should be more onerous than a breach of probation. The potential consequences of a breach finding can be taking no action, changing the optional conditions, suspending the conditional sentence order, and terminating the conditional sentence order and directing the offender be committed to custody until the expiration of the sentence. The decision between a conditional sentence and a sentence of imprisonment is about denunciation. The important considerations are the specific offense, personal circumstances of the offender, and whether the denunciatory message can be conveyed in some way other than incarceration. 67 footnotes