CONDITIONAL SENTENCING

This paper, "Conditional Sentencing: A Conservative Paradigm" was written on Nov 16, 2005, for my UFV Crim 103 (Introduction To Criminal Justice System) course, instructed by Kim Polowek.

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INTRODUCTION

According to section 718 of the Criminal Code of Canada, “the fundamental purpose of sentencing is to contribute along with crime prevention initiatives, to respect for the law and maintenance of a just, peaceful and safe society by imposing just sanctions.

The fundamental principle of sentencing, according to section 718.1 of the Criminal Code of Canada (ccc s. 718.1), is that of proportionality: a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender” (Roach, Kent; Essentials of Canadian Law: Criminal Law; 3rd Edition, 2004). But this is not always the case, and many people believe that we now have a legal system that has nothing to do with justice.

Example 1:

R. v. Bhalru and R. v. Khosa [2002]: In November 2000, Bahadur Singh Bhalru and Sukhvir Singh Khosa were involved in street racing. The result was the death of an innocent pedestrian, Irene Thorpe. On October 18, 2002 both accused were found guilty of criminal negligence causing death. On February 3, 2003 both accused were sentenced to conditional sentences of imprisonment of 2 years less a day, meaning both accused were allowed to serve their sentences in the community. Causing death by criminal negligence [ccc s. 220(b)] carries a maximum term of imprisonment for life.

Example 2:

R. v. Senner [2005]: In November 2002 Teresa Senner killed her lover, Norman Wicks for dating other women and deciding not to leave his wife. The original charge laid against Senner was second degree murder but later reduced to manslaughter. The judge sentenced Senner to a conditional sentence of 2 years less a day, in which Senner would be allowed to continue living in her home, but with a strict curfew and no access to the Internet or e-mail. A conviction of second degree murder [ccc s. 235(1)] carries an automatic life jail term, manslaughter [ccc s. 236(b)] has a maximum of life. The judge could have sentenced Senner to at least 10 years in jail.

Example 3:

R. v. Banfield [2005]: On October 28, 2003 Heather Banfield was driving along 14th Ave (Mission, BC) at around 7:00 PM when she hit pedestrian Charity Chamberland. Chamberland's 2.5 year old son watched his mother die. Chamberland was also pregnant. Prior to sentencing Banfield took it upon herself to attend counselling with her church pastor and had refrained from driving for 1 year. On May 2005 Banfield, upon conviction, was ordered to pay a fine of $1000.00. There was No conditional sentence. No community service. Banfield's father is a member of the Maple Ridge Detachment of the RCMP.

“Conditional sentences do not fit comfortably either with prior Canadian sentencing practices or the purpose and principles of sentencing now (somewhat incompletely) codified by sections 718 to 718.2 of the Criminal Code. At first glance, they are paradoxical: on the one hand the trial judge must decide that only a sentence of imprisonment will suffice for a particular offender and a particular offence; but that judge subsequently authorizes the offender’s release into the community.

Such a disposition is inconsistent with Canadian sentencing practices for a wide range of offences, such as drug trafficking and theft from an employer....conditional sentences do not appear to convey the necessary public messages of general deterrence, denunciation, and retribution. In fact, the imposition of a conditional sentence could be said to subvert the message that the original sentence of imprisonment was meant to communicate” (Gemmell, Jack; Conditional Sentences, 1998).

Academics have argued that the above sentences are an answer to resolving Canada’s high rate of incarceration. “...conditional sentences represent a means of reducing Canada’s high incarceration rate for non-violent offenders” (Gemmell, Jack; 1998). “Parliament intended conditional sentences to be a true alternative to imprisonment. According to the minister (of justice), the conditional sentence sanction is ‘obviously aimed at offenders who would otherwise be in jail but who could be in the community under tight controls.’

He went on to add: ‘It seems to me that such an approach would promote the protection of the public by seeking to separate the most serious offenders from the community while providing that less serious offenders can remain among other members of society with effective community based alternatives while still adhering to appropriate conditions” (Gemmell, Jack, 1998).

Academics have also addressed the sentencing issues surrounding dangerous driving causing death or bodily harm. “Prior to the enactment of the conditional sentence provisions, appellate courts across the country, mindful of the carnage caused by overly aggressive driving, routinely approved of or imposed penitentiary or upper reformatory length sentences even for first offenders, particularly when alcohol was found to be a contributing factor. Since the change in the legislation, some courts have modified their views, acknowledging that makes little sense to incarcerate a person who has made a single mistake, albeit one with dreadful consequences for the offender and his victims” (Cole, P. David; Conditional Sentencing: Recent Developments, 1998).

“In M. (CA). Chief Justice Lamer explained that ‘denunciation embraces two different but related concepts. A sentence with a denunciatory concept satisfies the community’s desire and need to condemn “that particular offender’s conduct.” A denunciatory sentence can also play a more positive role in a rational and human sentencing regime by communicating and reinforcing a shared set of values.

Although the case law will no doubt continue to evolve, it seems clear.... that the fact of maiming another individual or taking someone’s life will no longer be considered sufficient in itself to justify a custodial sentence. Factors demonstrating that the accused exhibits evidence of an ongoing risk to the community or a high degree of ‘moral blameworthiness’ for the offence committed must be present before a custodial sentence is likely to be imposed” (Cole, P. David; 1999).

Other academics have argued that, “...in the wrong hands it can produce as much harm as good” (Roberts, V. Julian; Conditional Sentencing: Issues and Problems, 1998). And conditional sentencing like the one’s in the above examples have caused further emotion and physiological effects to the victims or the victims’ family members.

CONCLUSION

In each case cited justice had been delayed. And where justice is delayed, justice is denied. According to Randy Kamp, Member of Parliament for the Conservative Party of Canada (CPC), “it has been revealed that the number of repeat offenders in Canada is nearly four times higher than the 10% rate the Federal Government has reported. The Liberals don’t include repeat offences that occur more than 2 years after the first offence. If you count all repeat offenders, the rate is actually close to 40%.

Crime is on the rise in Canada. Reports indicate that in 2003 the national crime rate climbed 6%. Despite this, the Liberals are allowing repeat offenders to serve conditional sentences in half-way houses in communities all across the country, instead of in jail.”

“The federal Liberals like to make phony announcements about increasing maximum sentences but what are needed are mandatory minimum sentences so that the court will once again start to hand out punishments that fit the crime instead of handing out conditional sentences like cheap candy” (Kamp, 2005).

To address the concerns of the current sentencing principles, the CPC recommended reforming criminal sentencing though mandatory minimum sentences for repeat and dangerous offenders, requiring that sentences be served consecutively and eliminating automatic statutory release. In addition, to exclude all violent offenders from conditional sentencing. Sentencing judges must, in sentencing the accused, emphasize the need and rights of victims.

REFERENCES

R. v. Banfield [2005]

R. v. Bhakru and R. v. Khosa [2002]

Cole, P., David (1998) Conditional Sentencing: Recent Developments

Gemmell, Jack (1998) Conditional Sentences

Kamp, Randy, MP (2005) Message to Constituency

Roach, Kent (2004) Essentials of Canadian Law: Criminal Law, 3rd Edition

Roberts, V., Julian (1998) Conditional Sentencing: Issues and Problems

R. v. Senner [2005]