Thank you, Mr. Chair.
My name is Don Larman, and I'm the president of the Probation Officers Association of Ontario. With me today is Ms. Cathy Hutchison, past president of the association.
The Probation Officers Association of Ontario is a not-for-profit organization representing the professional interests of the probation and parole officers in Ontario since 1952. In addition to many other functions, POAO provides policy and legislative positions on relevant criminal justice topics and is separate from the bargaining agent.
We thank you for the invitation to share the perspectives of those working on the front lines in the supervision of offenders.
The POAO supports the appropriate use of community supervision in the rehabilitation of offenders and protection of communities. The mandate of the probation officer is to protect society from offender recidivism through assessment, supervision, and enforcement. In Ontario, officers supervise approximately 53,000 offenders on probation and approximately 5,000 on conditional sentences each year. In light of the varying circumstances of each offender and each offence and the amount of information we have pertaining to the cases, we fully understand and appreciate the concept of individualized sentencing; that is, this offender, this offence.
When conditional sentencing was introduced in 1996, we understood the intent, as did all others who heard the messages about its purpose. The language in section 742.1 indicating that conditional sentencing was to be used in accordance with the sentencing principles, and in cases where the offender serving the sentence in the community would not endanger the safety of the community, certainly served to emphasize this point.
The reason for our testimony today, and undoubtedly the reason for attempts to amend conditional sentencing legislation, is the great concern surrounding the fact that in some cases very serious offences are resulting in conditional sentences. The traditional system of judicial discretion has been questioned by many as the conflict between the original description of this regime and the reality of its use is apparent.
While some may say that it's easy to criticize decisions made by judges who are not able to speak out in defence, we are not here with the purpose of criticizing. Perhaps, as suggested previously, the principles with regard to use of this sentencing regime are too broad, and perhaps the results of case law such as Proulx have given such direction. Regardless of the reason, our association has spoken out for many years on the inappropriate use of conditional sentencing in the cases of the most serious offences.
While there are other issues of concern, such as enforcement, resourcing, and monitoring, we are speaking today about the issue of appropriate offenders and offences for conditional sentencing. For the reasons already stated, we are in support of Bill C-9, which, although not perfect, as some have pointed out, certainly makes an attempt to address the grave concerns regarding which offenders should be eligible for this option. Examples of these, such as causing the death of a child, serious violent and sexual offences against children, driving offences resulting in death, manslaughter, and others, are certainly not the ones that we or the public ever imagined would be used for this house arrest sentence.
In cases involving serious violent and sexual offences, as well as those resulting in loss of life, it is our submission that the principle of proportionality is not met by using this imprisonment in the community. How is it proportionate that the offender in such cases does not serve one day in jail for their actions, and how does this meet the sentencing principles of denouncing unlawful conduct, deterring the offender and others, separating offenders from society where necessary, and promoting a sense of responsibility in offenders? It seems that in such cases the only principles being prioritized are rehabilitation and the principle of using the least intrusive measure. In such cases, we do not believe that the gravity of the offence is acknowledged sufficiently by a jail-at-home sentence. In addition, we submit that more attention needs to be given to the suitability of offenders for this sentence, particularly their history of opportunities for community supervision and compliance with these.
Such information can be conveyed to the sentencing judge through a pre-sentence report, and we submit that this information should be requested with greater frequency if a conditional sentence is being considered.
A professor who testified to this body a few weeks ago made a point with which we concur. He stated:
The reality, in my opinion, is that we tend to overestimate the denunciatory and deterrent effect of a conditional sentence. This is because of what I would consider to be a questionable assumption that is made in the case law dealing with conditional sentencing. That assumption is that a conditional sentence is more like a jail term or a period of incarceration than it is like a period of probation.
He went on to say “In my respectful submission, this inflates the impact of a conditional sentence.”
We agree with the statements of this professor, who noted that conditional sentencing is an appropriate response “where the offence is not so serious that permitting the offender to remain in the community provides an unjust response to the offence”, and further, “will not pose an appreciable risk to the community”. Finally, he noted that conditional sentencing is appropriate “where priority should be given to rehabilitation or restorative justice”.
Cathy.