Mr. Speaker, I am pleased to speak to Bill C-9 this evening.
Conditional sentencing allows for sentences of imprisonment to be served in the community, rather than in a correctional facility. It falls at a point between imprisonment and sanctions such as probation or fines. The conditional sentence was not introduced in isolation, but as part of a review of the sentencing provisions in the Criminal Code.
These provisions included the fundamental purpose and the principles of sentencing, namely, that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. The principles apply to conditional sentences as well.
The primary goal of conditional sentencing is to reduce the reliance upon incarceration by providing an alternative sentencing mechanism to the courts. In addition, the conditional sentence provides an opportunity to further incorporate restorative justice concepts into the sentencing process by encouraging those who have caused harm to acknowledge this fact and to make reparation. Achieving these objectives is beneficial to society.
At the time of their introduction, conditional sentences were generally seen as an appropriate mechanism to divert minor offences and offenders away from the prison system. Overuse of incarceration was recognized by many as problematic while restorative justice concepts were seen as beneficial. In practice, however, conditional sentences are sometimes viewed in a negative light when they are used in cases of very serious crimes.
Concern has been raised that some offenders are receiving conditional sentences of imprisonment for crimes of serious violence, sexual assault and related offences, driving offences involving death or serious bodily harm, and theft committed in the context of a breach of trust.
While most people would agree that allowing persons not dangerous to the community, who would otherwise be incarcerated and who have not committed a serious or violent crime, to serve their sentence in the community is beneficial, some consider that in certain cases the very nature of the offence and the offender require actual incarceration.
The fear is that to refuse to incarcerate an offender can bring the entire conditional sentence regime and hence the criminal justice system into disrepute. In other words, it is not the existence of conditional sentences that is problematic, but rather their use in cases that seem clearly to call for incarceration.
Often it is an inciting headline and media reports that raise calls of outrage. However, had one sat through the criminal trial, heard submissions on sentence and the reasons for judgment, it is not unusual that a reasonable individual would support the decision.
The provisions of governing conditional sentences are set out in sections 742 to 742.7 of the Criminal Code. They set out four criteria that must be met before a conditional sentence can be considered by the sentencing judge. First, the offence for which the person has been convicted must not be punishable by a minimum term of imprisonment. Second, the sentencing judge must have determined that the offence should be subject to a term of imprisonment of less than two years. Third, the sentencing judge must be satisfied that serving the sentence in the community would not endanger the safety of the community. Fourth, the sentencing judge must be satisfied that the conditional sentence would be consistent with the fundamental purpose and principles of sentencing as set out in section 718 of the Criminal Code.
Insofar as the fourth criterion is concerned, among the objectives of sentencing are the denunciation of unlawful conduct, the deterrence of the offender and others from committing offences, the separation of the offender from the community when necessary, the rehabilitation of the offender, the provision of reparation to victims or the community, and the promotion of a sense of responsibility in the offender.
The foregoing criteria were designed to ensure that the most severe cases would not be dealt with by a conditional sentence. In addition to meeting the criteria set out, conditional sentences involve a number of compulsory conditions as set out in section 742 of the Criminal Code.
These conditions compel the offender to keep the peace and be of good behaviour, appear before the court when required to do so, report to a supervisor when required, remain within the jurisdiction of the court unless written permission to go outside the jurisdiction is obtained from the court, and notifying the court and a supervisor in advance of any change of name or address and promptly notify the court or the supervisor of any change in employment or occupation.
Optional conditions are designed to respond to the circumstances of the individual offender. Such conditions may include an order that the offender abstain from the consumption of alcohol or drugs, abstain from owning, possessing or carrying a weapon, perform up to 240 hours of community service, or any other reasonable condition that the court considers desirable for securing the good conduct of the offender and for preventing a repetition by the offender of the same offence or the commission of another offence.
As an alternative to the possibility of imposing a conditional sentence, a court may suspend sentence and impose a probation order. Section 731 of the Criminal Code indicates that, where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence, and the circumstances surrounding its commission, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order.
This possibility is open to the court only if no minimum punishment is prescribed by law. In many cases, conditional sentences are preferential alternatives to a suspended sentence or probation order, as I have just elaborated.
In a Queen's University study that concentrated upon the victims of crime and their attitudes toward conditional sentencing, the following benefits of conditional sentencing were cited and I find these most interesting: most rehabilitation programs can be more effectively implemented when the offender is in the community rather than in custody; prison is no more effective a deterrent than more severe intermediate punishments, such as enhanced probation or home confinement; keeping offenders in custody is significantly more expensive than supervising them in the community; the public has become more supportive of community-based sentencing, except for serious crimes of violence; widespread interest in restorative justice has sparked interest in community-based sanctions. Restorative justice initiatives seek to promote the interests of the victim at all stages of the criminal justice process, but particularly at the sentencing stage; and the virtues of community-based sanctions include the saving of valuable correctional resources and the ability of the offender to continue or seek employment and maintain ties with his or her family.
The most important case to consider conditional sentencing is the decision of the Supreme Court in Regina v. Proulx. Here, the Supreme Court examined the issue of conditional sentences in a case that concerned a charge of dangerous driving causing death and bodily harm. Prior to this decision, judges had little guidance on when it was appropriate to impose a conditional sentence, outside of the criteria set out in the Criminal Code. The Supreme Court made it clear that a number of changes needed to be made to the way in which the sanction was used. But the judgment also consists of a strong endorsement of conditional sentencing.
The key result of the Proulx decision was that there is no presumption against the use of a conditional sentence if the crime does not have a mandatory period of incarceration.
Objections have been raised to the use of conditional sentences for certain crimes. One example is that of impaired driving. The organization Mothers Against Drunk Driving, MADD, Canada has circulated a petition asking Parliament to eliminate the availability of conditional sentences for those convicted of impaired driving causing death or impaired driving causing bodily harm.
MADD believes that for violent crimes in which persons have been killed and/or injured, a conditional sentence does not adequately address the severity of the crime. There is a perception that the justice system is tilted towards concern for the offender and not enough is said about the value of the human life that has been taken away. These are positions that must be considered as well.
The previous Liberal government introduced Bill C-70, an act to amend the Criminal Code with respect to conditional sentences, to further clarify the appropriate limit to the use of conditional sentences. We took the safety and security of Canadian communities very seriously.
Mr. Speaker, you are indicating to me that my time is over, and I--