Pros And Cons Of Conditional Sentencing

The third support argument that Parliament imposes the judiciary to place too much emphasis on incarceration is by restricting the use of conditional sentences of imprisonment. In Canada, the number of pre-trial detention cases in provincial/territorial custody has soared dramatically. The traditional proportion of ‘sentenced’ to ‘remand’ in the inmate population, went from ‘75% sentenced’ to ‘25% remand’, to a ‘50/50 split’, and this trend has been accelerating. It now goes without saying that at the time of the enactment of the amendments to the Criminal Code in 1996, there is now a significant overuse of incarceration as a punishment for criminal offences in Canada. As such the introduction of conditional sentences as an intermediate measure

The Supreme Court’s decision in R. v. Proulx commenced the legal framework within which a court should consider the purpose and application of imposing a conditional sentence. The court in Proulx were clear to voice that conditional sentences were custodial in nature, and as such, significant restrictions on liberty such as house arrest and curfews were to the norm. This naturally led to the result that these sanctions were intended for crimes at the more serious end of the spectrum where the expectation otherwise would have been jail. There are 75 separate offences with a maximum sentence of 14 years or life imprisonment, of which 36 are already ineligible for a conditional sentence. This leaves 39 offences affected by this provision of Bill C-16, An Act to Amend the Canada’s Election Act . These offences cover a wide range, from use of a forged passport, perjury, drawing a document without authority, to arson threatening the safety of others. Consequently, this becomes highly problematic, as there is nothing to distinguish offences related to personal offences or property offences or between or between violent and non-violent

Again, this leads to the prior question of how the role of conditional sentencing will play out in the hands of the next governing party? This case reinforced the notion that conditional sentences could serve the principles of denunciation and deterrence, thereby gaining more public confidence in the government with respect to the justice system, until down the road further limitations would be applied to it. The Supreme Court has made it clear that conditional sentences can work both restoratively and having punitive objectives of sentencing but, most importantly, they must not be seen as a probationary measure. Hence, conditional sentences are a penal equivalent to incarceration. At this juncture, the initial purpose of reducing incarceration in Canada would be lost and conditional sentences will have little effect in satisfying the fundamental principles of sentencing envisioned by Parliament in 1996. However, Parliament amended 742.1 of the Code to provide that a conditional sentence could only be imposed where “it would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. This reflected the concern that some offences were actually not well suited to conditional sentence dispositions, those for which general deterrence and denunciation sentence dispositions and those for which general deterrence and