Conditional Sentencing in Canada: an Overview of Research Findings

2. Judicial Attitudes to Conditional Sentencing (cont'd)

2. Judicial Attitudes to Conditional Sentencing (cont'd)

2.7 Community/ Supervisory Resource Issues

Community resources, particularly adequate supervisory resources, are an important issue for judges considering the imposition of a conditional sentence. Several questions on the survey addressed this issue. Judges seemed somewhat divided on whether they were able to find out what community resources were available: 43% responded that they were able to find out about resources all or most of the time, while 31% stated that they rarely or never were able to find out about such resources (Table 2.9).

Table 2.9: Availability of Resources

If you are considering a conditional sentence, are you able to find out what community resources are available and which might be appropriate for the case before you?
Response Percent of judges giving this response
Yes, all the time 9%
Yes, most of the time 34%
Yes, some of the time 26%
Rarely 28%
No, never 2%
Total 100%

Judges would impose more conditional sentences if there were more support resources

The importance of the issue of community and supervisory resources can be seen by the next Table (2.10), which shows that fully four out of five judges state that they would be more inclined to impose conditional terms of imprisonment if they could be assured that more resources were available. Judges with experience imposing conditional sentences were marginally more likely to state that they would impose conditional sentence orders more frequently if there were more community resources available.

Table 2.10: Attitudes Toward Conditional Sentences as a Function of Community Resources

Would you be inclined to use conditional sentences more frequently if there were more community and supervisory resources?
Response Percent of judges giving this response
Yes 80%
No 20%
Total 100%


Table 2.11: Number of Available Treatment Programs

Is the number of available treatment and other programs in your area adequate to support the use of conditional sentences?
Response Percent of judges giving this response
Yes, for all cases 3%
Yes, for most cases 27%
Yes, for some cases 32%
Rarely 31%
No, never 7%
Total 100%

A final question about support programs dealt with the need for additional treatment programs. Specifically, judges were asked to identify needs in light of what already existed in the area. Of the total sample, 281 responded to this question. The most frequently-identified need was for more counselling programs, cited by three-quarters of this group. After counselling, anger management (65%) and alcohol or drug treatment programs were identified as necessary additions .

2.8 Nature of Conditions Imposed

The number and nature of optional conditions imposed as part of a conditional sentence order are critical to the success of the new sanction. It is only through the careful, and creative tailoring of the optional conditions that the sanction can be distinguished from a probation order and made responsive to the needs of the particular offender. National data on the use of different optional conditions are not yet available. For this reason, the responses to a question about the frequency of imposition of different conditions are particularly revealing.

Treatment and no-contact orders most frequently-imposed conditions

Table 2.12 shows the optional conditions most often imposed. Treatment and no contact orders are the most frequently-cited; 88% of the sample stated that they often imposed treatment, and 85% stated that they often imposed no contact orders. Curfews and order to abstain from alcohol or drugs were also frequently imposed by this sample of judges. House arrest with electronic monitoring was rarely used: 78% said that they never imposed this condition, 14% "seldom" and 8% "often". House arrest without electronic monitoring was somewhat more popular: 35% stated that they often imposed this condition, 28% "seldom" and 37% "never".

Table 2.12: Usage of Optional Conditions

How often do you impose each of the following optional conditions? (Q12)
Condition: Often Seldom Never Total
Alcohol/drug treatment 88% 12% 1% 100%
Other treatment 69% 28% 4% 100%
Restitution 62% 33% 5% 100%
Community service work 77% 18% 4% 100%
Curfew 71% 26% 3% 100%
No contact 85% 13% 1% 100%
House arrest with electronic monitoring 8% 14% 78%[*] 100%
House arrest without electronic monitoring 35% 28% 37% 100%
Abstain from alcohol 74% 22% 5% 100%
Abstain from drugs 79% 19% 3% 100%
Abstain from carrying a weapon 71% 23% 6% 100%

2.9 Consequences of Violating Conditional Sentence Orders

A critical issue in the conditional sentence literature involves the consequences of breaching an order. Where a breach of conditions is formally alleged, the sentenced person may be immediately returned to custody; in some circumstances, service of the original conditional sentence order is suspended, and is only resumed when the prisoner is re-arrested. According to section 742, the court has several options in the event that a breach is proven: (a) the offender can be committed to custody to serve the balance of the term in prison; (b) the optional conditions may be altered, or (c) the court may choose to let the order continue without modification.

It is somewhat surprising that over 40% of the judges responded "don't know" when asked to estimate the proportion of cases in which the conditions of the conditional sentence order have been followed without violation. This may suggest that judges believed that a significant number of orders that had been imposed were still running at the time that the survey was conducted, or it may suggest the absence of much communication between the sentencing judge and the probation personnel who administer the orders. A similar percentage (41%) responded that conditions imposed had been followed without violation in all or most of the cases (see Table 2.13).

Table 2.13: Experience with Violation of Conditions

Considering the conditional sentences that you have imposed, in what proportion of the cases have the conditions been followed without violation?
Response Percent of judges giving this response
In all of the cases 9%
In most of the cases 32%
In some of the cases 10%
In few of the cases 7%
In none of the cases 1%
Don’t know 41%
Total 100%

Judges with experience with breach hearings report few problems

If a breach of conditions is alleged, section 742 sets out a procedure by which the allegation can be heard in court. Judges were asked what proportion of offenders would have been brought back to court in the event that there "might have been a substantial violation of conditions". A large percentage (just under half, 49%) responded "don't know". Of those who did offer a response, most were inclined to the view that the offender alleged to have violated his or her conditions had been brought back to court. Nevertheless, it is worthy of further research that half the judges were unaware of whether substantial allegations had been returned to court (see Table 2.14).

Table 2.14: Percentage of Cases Returned to Court

Of those cases where there might have been a substantial violation of terms of conditions, what proportion have been brought back to court?
Response Percent of judges giving this response
All of the cases 14%
Most of the cases 15%
Some of the cases 7%
Few of the cases 9%
None of the cases 7%
I don’t know 49%
Total 100%

Most judges believe that incarceration is the appropriate response to a breach of conditions

Judges were asked whether they thought that an offender who breaches a conditional sentence order should be automatically sent to prison to serve the balance of the sentence. As Table 2.15 shows, the most frequent response option was "in most cases". A further 16% chose "in all cases". These trends suggest that judges believe the usual judicial reaction to breach should involve the incarceration of the offender. Nevertheless they strongly favour preserving sufficient judicial discretion to choose, in exceptional circumstances, some other route which does not invoke the incarceration of the offender for the balance of the original sentence.

Table 2.15: Judicial Response to Breach

Do you think an offender who breaches a conditional sentence should be automatically sent to prison to serve the balance of the sentence?
Response Percent of judges giving this response
Yes, in all cases 16%
Yes, in most cases 45%
Yes, in some cases 22%
Yes, in a few cases 4%
No 14%
Total 100%

2.10 Effects of the Conditional Sentence on Provincial admissions to custody

As noted, the specific goal of section 742 was to reduce, in a principled way, the number of provincial[2] admissions to custody across the country. It is probably too early in the new sentencing regime to come to definitive conclusions about the effect of section 742[3]. Nevertheless, judges were asked a series of questions about their perceptions of the effects of the conditional sentence.

Most judges believe that the conditional sentence has reduced the number of admissions to custody

Fully three-quarters of the sample were of the view that conditional sentences have reduced the number of admissions to custody in their respective courts. Twelve percent felt that there had been no reduction as a result of the introduction of the new sentence, and 12% had no opinion. It is clear then, that substantial numbers of sentencing judges believe that the new sanction has been successful in achieving its principal goal (see Table 2.16).

Table 2.16: Effectiveness of Conditional Sentencing in reducing incarceration rates

In your opinion, have conditional sentences reduced the number of offenders sent to custody in your court?
Response Percent of judges giving this response
Definitely yes 39%
Probably yes 36%
Probably not 10%
Definitely not 3%
I don’t know 12%
Total 100%

Considerable regional variation emerged with respect to this question. The percentage of judges who responded that conditional sentences had "definitely" reduced the number of offenders sent to custody ranged from a low of 3% in the NorthWest Territories to 50% in Ontario[4]. Over one-third of the respondents from the Prairie provinces held this view.

2.11 Public Perceptions of Conditional Sentences of Imprisonment

Conditional sentences carry a clear danger of generating public criticism of the sentencing process. Members of the public can be impatient with the complexities of the sentencing process, and tend to be critical of an absence of truth in sentencing. The conditional term of imprisonment has been described as a paradox (e.g., Gemmell, 1996; Roberts, 1997) the nature of which may be hard for the public to grasp. Polls in this country have long shown that most people believe that sentences are too lenient. Unless the conditions are properly crafted, a conditional term of imprisonment runs the risk of appearing to be a lenient disposition, comparable in severity or impact on the offender to a term of probation.

The only studies relating to this issue are a survey of the Ontario public conducted in 1997 (see Marinos and Doob, 1999) and a national survey conducted in 1999 (Sanders and Roberts, in press). (Results from these surveys are discussed in a separate chapter in this report). Nothing is known about judicial reaction to the views of the community with respect to conditional sentencing. How do judges react to the issue of public perception and the conditional sentence? Several questions on the survey addressed this critical issue. Questions explored public knowledge of, and support for, conditional sentences, and judges were also asked whether they considered the impact on public opinion when sentencing an offender to a conditional sentence of imprisonment.

Judges feel that the public in general do not understand conditional sentences

The first question asked respondents to state whether they thought that "the general public understands the nature of conditional sentences". As can be seen in Table 2.17, most judges (61%) thought that "only a few" members of the public understands conditional sentences. Only 3% of respondents chose the response that "most people" understood the nature of conditional sentences. Over three-quarters of the sample felt that few or no members of the public understood the new disposition. As one respondent noted on the survey: "the public have not been fully informed about the conditional sentencing process, and in that regard they look upon it with some scepticism". Judges in Ontario were more likely to be pessimistic about the likelihood of public understanding (83% said that few or no members of the public understood conditional sentence, compared to 67% in Quebec), otherwise there were few regional differences.

Table 2.17: Public Understanding of Conditional Sentences

Do you think the general public understands the nature of conditional sentences?
Response Percent of judges giving this response
Yes, most of the public 3%
Yes, some of the public 14%
Only a few of the public 61%
No, none of the public 17%
I don’t know 5%
Total 100%

but that the informed public is quite supportive.

A slightly different question probed the issue of whether members of the public would support conditional sentences if they were more aware of their nature. Respondents were asked: "Do you feel that members of the general public who are aware of the nature of conditional sentences support their use?" Here, judicial perceptions of public opinion were more positive. Even though the vast majority of judges who participated in the survey said that the public does not understand conditional sentences, slightly over half (54%) thought that most or some of those people who understood conditional sentences supported their use (see Table 2.18). One judge noted that: "I have spoken to people about the process and I have always been satisfied that when properly explained they [the public] fully understand and see the merits in it".

Table 2.18: Reaction of "Informed" Public

Do you feel the members of the general public who are aware of the nature of conditional sentences support their use
Response Percent of judges giving this response
Yes, all who are aware 1%
Yes, most who are aware 25%
Yes, some who are aware 29%
Only a few who are aware 24%
No, none who are aware 7%
I don’t know 14%
Total 100%

Judicial opinion was divided on the question of whether the public can distinguish between conditional sentences and probation

It is clearly important for the sentencing system to distinguish conditional sentence orders from probation orders. There are obvious similarities between the two; both involve supervision in the community, both involve the imposition of compulsory and optional conditions, and there is considerable overlap with respect to the nature of the conditions that may imposed for the two sanctions. Nevertheless, Parliament intended the conditional sentence to be more severe than a term of probation. If the public perceive the conditional sentence of imprisonment to be no more severe than a term of probation, criticism of the sentencing process will likely grow. For this reason, we asked judges whether the general public can be made to understand the difference between a conditional sentence and a probation order.

The sample was fairly evenly split in their responses. Over one-third (37%) responded that "only a few" or "no" members of the public could be made to understand the difference. However, a similar percentage believed that "all or most" members of the public could be made to understand the difference (Table 2.19). Once again the Ontario judges tended to have a more pessimistic view than their colleagues in other parts of the country: judges in Ontario were less likely to express the view that the public could be made to comprehend the distinction between a conditional sentence and a term of probation.

Table 2.19: Potential Effectiveness of Public Education

Do you think that the general public can be made to understand the difference between a conditional sentence and a probation order?
Response Percent of judges giving this response
Yes, all of the public 3%
Yes, most of the public 33%
Yes, some of the public 28%
Only a few of the public 30%
No, none of the public 7%
Total 100%

Clearly then, judges believe that the public need to be educated about the nature and function of conditional sentences. A policy recommendation emerging from this survey would therefore involve engaging the public and educating them with respect to the conditional term of imprisonment. There is some frustration among judges with respect to this issue; one respondent observed that "in my jurisdiction, the Provincial Attorney General's Department has done nothing whatsoever to attempt to educate the public in this regard. The failure of our Provincial Governments to adequately explain to the public the process involved with a conditional sentencedoes little to enhance public support."

Most judges consider the impact of a conditional sentence order on public opinion

Since judges were inclined to believe that most people do not understand the new disposition, it is not surprising, perhaps, that they considered the impact that a conditional sentence order might have on public opinion. As shown in Table 2.20, almost half the sample stated that they always or most of the time considered the impact that a conditional sentence would have. One-fifth of the sample stated that they never considered the impact of the sentence (see Table 2.20).

Table 2.20: Effect of Conditional Sentence on Public Opinion

Do you ever consider the impact that a conditional sentence order might have on public opinion?
Response Percent of judges giving this response
Yes, all of the time 18%
Yes, most of the time 27%
Yes, some of the time 34%
No, never 20%
Total 100%