Mr. Speaker, the comprehensive sentencing reform legislation introduced in the first session of the last parliament as Bill C-41 has been in force since September 3, 1996.
While this legislation included many reforms, including the first ever parliamentary statement of the purposes and principles of sentencing, several provisions addressing the needs of victims, the possibility of diversion for adult offenders and the new provisions for fines and fine enforcement, one of the centrepieces of the legislation was the conditional sentence of imprisonment.
The conditional sentence concept was first suggested in a white paper on sentencing in February 1984 by then minister of justice, the late Mark MacGuigan. It is a sentence of imprisonment of less than two years which may be served in the community if the court is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing now set out in the Criminal Code of Canada.
The offender must abide by whatever conditions are ordered by the court. If the offender is found to have breached a condition, the balance of the sentence can be ordered to be served in custody.
When it comes to determining sentencing, there will always be decisions that will generate controversy and will seem questionable at first glance. This is precisely why our appeal courts are so useful. Without in any way minimizing the concerns we all have about certain conditional sentences, I believe that the hon. members must look at things in a balanced way.
More than 18,000 orders for conditional sentencing have been brought down since September 1996, and the great majority of these were the result of well-informed and wise decisions. Certain questionable decisions have been brought to the attention of this House by various members. As usual, the opposition is passing off the exception as the rule.
Consequently, we shall be continuing to work in close collaboration with the provinces, as the minister has already said in this House, in order to monitor the application of the clauses relating to sentencing closely and to assess whether further changes are required.
We are working with the provincial and territorial authorities responsible for prosecutions and correctional services in monitoring the use of conditional sentencing. From September 3, 1996 to December 31, 1997, there were 18,247 conditional sentences in this country, most of these for non-violent offences relating to property, operating a vehicle and the administration of justice.
In Ontario, for example, fraud is the offence which attracts the highest proportion of conditional sentences in terms of all sanctions. We must also bear in mind that prior to the availability of conditional sentences a significant percentage of offences involving violence resulted in probation as the most serious sanction.
I would like to say a word about the case law that is developing. Over 200 conditional sentences have been appealed since September 1996. The courts are now working on an analytical and reasoned approach that could be used by judges in determining when to hand down a conditional sentence.
They could invoke the purpose and principles of sentencing set out in paragraphs 718(1) and 718(2). The specific purposes of sentencing, such as setting an example, deterrence, and rehabilitation, are being analysed and the courts are trying to determine how the sentences handed down can achieve these objectives.
Courts are placing emphasis on denunciations, deterrents and proportionality in sentencing offenders convicted of serious sexual offences. Let me refer with approval to some of the statements which appellate courts have made in the context of considering whether a conditional sentence should be granted for an offender convicted of a sexual offence.
Madam Justice Ryan for the majority of the British Columbia court of appeal in Ursel said “Violent, degrading sexual attacks against women demand denunciation and deterrence. In a case such as this those sentencing objectives could not be adequately addressed through a conditional sentence”.
The Quebec court of appeal in P.C. said “nor would the imposition of a less restrictive sanction” than imprisonment “satisfy the objectives of a general deterrence and denunciation of assaults against children by those who are supposed to be protecting them”.
The Ontario court of appeal in MacNaughton said “In our view it should only be in rare cases that a conditional sentence be imposed in cases of breach of trust involving the sexual touching of children by adults”.
I think that these citations should reassure the House. I subscribe to the thinking that these courts of appeal have adopted in the cases cited and in many others.
In my opinion, the courts have done well to focus on the fact that these offences do not generally lend themselves to conditional sentences, excepting in extenuating circumstances having to do with such things as the advanced age of the offender, and the severity of his mental or physical condition.
I would like to remind hon. opposition members that a conditional sentence is no less a sentence of imprisonment. The court orders the offender to spend a certain period of time in prison. The offender who meets the terms of section 742.1 may, under certain conditions, serve his sentence in the community. He may, however, be sentenced to serve the remainder of his sentence in prison if he violates any one of these conditions.
In closing, may I say that while I understand and share the concern citizens sometimes feel when reading accounts of certain sentencing decisions, and those exaggerated by the opposition members, I think the conditional sentence has added an important sentencing option to the Criminal Code of Canada.
Without complete information about a case, the particulars of a case and all the possible mitigating circumstances and other factors, it is very difficult for us to sit in judgment of the appropriateness of a conditional sentence.
Trial courts have, for the most part, exercised their discretion with prudence. Appellate courts continue to provide guidance and perspective and no doubt the Supreme Court of Canada will have the opportunity to give its views on conditional sentences at some point in the future.
When the Minister of Justice appeared before the Standing Committee on Justice and Human Rights last month she tabled a letter to the chair suggesting it would be useful for the standing committee to undertake a review of the operation of conditional sentences at some point after the two year anniversary of the proclamation of Bill C-41.
This would be an opportunity for victims, criminal justice professionals, the public and even the opposition, because we do value their opinions when they are valuable, to express their views on the conditional sentencing option.
One issue on which the minister indicated she would particularly appreciate the committee's advice related to whether or not there should be further limits on the availability of conditional sentences than those presently set out in the Criminal Code.
I know the minister looks forward to working with the members of the justice committee, the member for Prince George—Peace River and all members in a shared desire to improve the criminal justice system for all Canadians.
In light of this referral and the minister's desire to benefit from the committee's thinking on this important issue, it would be premature for this House to pre-empt the committee's work by voting in favour of the hon. member's motion.