Thank you very much. I think that really is the key. As I say, I have sympathy for the objective behind this initiative, because conditional sentencing can I think be dispiriting to the Canadian public, who need to have faith in the administration of justice. Notwithstanding the comments we've heard to the contrary, I have tremendous respect for those views. The reality is that conditional sentencing can be an inappropriate response, in the view of those the criminal justice belongs to.
But the result of having an absolute prohibition on conditional sentencing for a long list of offences based on the maximum period of incarceration is not an effective way to deal with the problem. There are cases where conditional sentencing is the most sensible, economical, and appropriate response.
You have to leave the sentencing discretion with the judge. The problem right now, in my respectful submission, is that our appellate courts have taken the view that conditional sentencing is a significant deterrent and has a significant denunciatory impact. Even in cases where you need to have a denunciatory sentence, it can still be an appropriate response.
My feeling is that it is an appropriate response when you need to keep the offender in the community for purposes of rehabilitation and when it's not so serious an offence that the public will be outraged that someone gets to go back to their home. That's why I favour the discretionary approach you have described, which is very close to the position I'm putting forward.
If you put presumptions in the hands of a judge, the judge will be obliged to act consistently with those presumptions unless the judge is dealing with a particularly specialized case where there's some compelling reason to depart from the norm. I can assure this committee that if it provides clear presumptions with respect to the impropriety of conditional sentencing in cases where deterrence or denunciation require priority, judges will respect that. In those cases where they don't, that will give the prosecutors appropriate grounds for appeal.
Right now the discretion in sentencing is extremely broad, and in the absence of that kind of guideline, appeals are very difficult to bring from these kinds of cases. So rather than take what I think is a “throw the baby out with the bathwater” approach, as I describe it in my paper, where you just say we're not going to have conditional sentences in any of these cases, even if they might make sense, because we just want to have a clear line.... That's not the way sentencing operates. We sentence the offender and the offence and we look at all of the circumstances. As I said, there's such a huge range in seriousness in the way offences occur. If you take away the conditional sentence option absolutely, you're going to get some cases where judges give a lesser sentence than they would have given under the current regime, just because the alternative is not an appropriate or rational response.