This is the last in a three-part series on proposed reforms to our justice system.
Until 1996, Canadian sentencing judges could impose a fine, a discharge, probation with various conditions, imprisonment or certain combinations of these. In 1996, Parliament added conditional sentences – a non-prison choice – to this list. It’s available for some cases that could otherwise have involved prison sentences of under two years; it’s never available for offenders deserving of a sentence of two years or more or who pose a danger to the community.
“House arrest” is usually one of the punitive conditions attached to conditional sentences. Hence, it’s often called “home detention.” Other conditions – punitive and therapeutic (community service and treatment, for example) – can be required. Conditional sentences must be proportionate to the gravity of the offence. And unlike prison sentences, offenders serving conditional sentences must serve their full sentences – there’s no parole or remission.
Offenders who violate any condition of the sentence may be sent to prison for the remainder of the sentence. Offenders on conditional sentences, therefore, live in the shadow of the prison every day of their sentences, under careful supervision.
The advantages of house arrest include lower costs to the taxpayer. Offenders (with judicial approval) can remain at their jobs and support their families. The crime-creating effects of prison are avoided.
House arrest is not a free pass. Without prior judicial approval, the offender can’t leave his house for any reason. If he does, he’ll go directly to jail. Anyone who thinks it’s an easy sanction should try it for a week or two.
A conditional sentence thus represents a way of being punitive, but intelligent, in holding offenders accountable. It is still relatively rare: More than seven times as many people are sent to prison in Canada as get conditional sentences.
The government has promised to further restrict the use of conditional sentences, claiming that its goal is to “protect the safety and security of our communities.” Yet it ignores substantial evidence demonstrating the opposite. The government indicated it would eliminate the use of the sanction for “serious and violent offenders,” but its bill also would have eliminated it for an offender whose offence involved breaking into a shed and stealing a bicycle.
Further restrictions will mean that offenders who otherwise would have received house arrest will go to a provincial, not federal, prison, thus ensuring that provincial/territorial costs will increase. Rather than benefiting the larger community through the use of punitive but simultaneously rehabilitative conditional sentences, the bill guarantees an increase in costs to the community. The government’s view that imprisonment pays for itself in crime reduction is a big lie.
The government’s approach to conditional sentences is symptomatic of its generally flawed approach to finding just solutions to criminal justice issues. Few Canadians believe that Canada’s sentencing structures are coherent. During its minority years, the Conservatives introduced 61 separate crime bills. About half of them related to sentencing or punishment. The problem is that its “punishment” bills each dealt with separate parts of the problem in isolation. None examined the overall problems of sentencing. Incoherence was not only tolerated, it was celebrated. Nothing was done to create a coherent sentencing system.
What’s clearly needed is a thoughtful examination of criminal punishment in Canada, something that previous Conservative and Liberal governments began but didn’t complete. Such an examination would necessarily involve making difficult choices. A sensible sentencing structure would make sentencing outcomes more understandable and predictable.
A government genuinely interested in improving sentencing would realize that fiddling with the availability of conditional sentences and similar forms of legislation will do nothing to improve the operation of our criminal justice system. The problems with sentencing in Canada won’t be solved by continuing the failed approach we have experienced in the past few years. Serious debate and thoughtful hard work are necessary.
It’s ironic that, while the Harper government wants to seriously increase the use of imprisonment on the false justification that it’s the most effective way to increase public safety, other countries are trying to seriously decrease its use. The United States, for instance, is considering moves toward sanctions such as house arrest. Canada and the U.S. are like ships passing in the night, but Canadians are the unfortunate passengers on the ship of fools.
Edward Greenspan is a Toronto criminal lawyer. Anthony Doob is a professor of criminology at the University of Toronto.
