Alternatives to Imprisonment:
An Overview of Community
Sentencing in Canada
Second Meeting on Authorities Responsible
for Penitentiary and Prison Policies of the
OAS Member States
Valvidia, Chile
August 2008
Sentencing Law
Contained in Part 23 of the Criminal Code of
Canada – Passed by Federal Parliament,
applicable throughout Canada but largely
administered by the Provincial Governments
and Appellate Jurisprudence:
– Interpreting provisions of Code as applied to
the facts of a case
– Provincial Courts of Appeal
– Supreme Court of Canada – final court for all
Canada.
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Purpose and Principles of
Sentencing
•
•
Purpose
718. The fundamental purpose of sentencing is to contribute, along with crime
prevention initiatives, to respect for the law and the maintenance of a just, peaceful
and safe society by imposing just sanctions that have one or more of the following
objectives:
a) To denounce unlawful conduct;
b) To deter the offender and other persons from committing offences;
c) To separate offenders from society, where necessary;
d) To assist in rehabilitating offenders;
e) To provide reparations for harm done to victims or to the community; and
f) To promote a sense of responsibility in offenders, and acknowledgment of the harm done to
victims and to the community.
•
718.1 A sentence must be proportionate to the gravity of the offence and the degree
of responsibility of the offender.
•
Section 718 (d), (e) and (f) provide the statutory basis for the use of communitybased sentences.
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Other sentencing principles
elaborate on this:
• An offender should not be deprived of
liberty, if less restrictive sanctions may
be appropriate in the circumstances
(s. 718.2(d)); and
• All available sanctions other than
imprisonment that are reasonable in
the circumstances should be
considered for all offenders, with
particular attention to the
circumstances of Aboriginal offenders
(s. 718.2(e)).
Sanctions
(In ascending order of severity)
• Alternative Measures (Diversion) refers to
diverting accused from the formal court system.
• They may be used if not inconsistent with the protection of
society , and in the interests of society and of the victim, and
offender accepts responsibility for the act that forms the basis
of the alleged offence;
• Usually used for first-time offenders who have committed
relatively minor and non-violent crimes;
• Can be both pre-charge (by police) or post-charge (by
prosecutor);
• This is the stage at which restorative justice processes are
sometimes used.
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Discharges
– If court considers it to be in the best interests
of the accused and not contrary to the public
interest
– Absolute Discharge
• no criminal record
– Conditional discharge
• no criminal record if conditions of probation order
fulfilled
– Usually a minor offence and first-time
offender.
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Probation
• Up to 3 years
• Stand-alone or after a sentence of
imprisonment of less than 2 years or in
addition to a fine
• Mandatory and optional conditions – focus
is on rehabilitation
• Most common sanction
– 42% of all sentences in 2005-2006
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Intermittent Sentence
•
•
•
•
Up to 90 days
Usually in jail on weekends
On probation during the week
To allow an offender to maintain job or continue
education
• Approximately 15% of sentences
• Most often used with impaired driving
convictions where a mandatory minimum
punishment applies when a second or
subsequent offence.
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Fines
• Court must inquire into ability of offender to pay
before ordering a fine.
• Options to imprisonment for failure to pay fine:
– Licence suspension or non-renewal
– Registration as a civil judgment
– Community service (fine-option)
• Available in most provinces
• Most serious sentence in 26% of cases in
2005/06
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Restitution to Victims
(Financial Compensation)
• If readily ascertainable for
– Damage to or loss of property
– damages, including loss of income, caused by
bodily harm
– If bodily harm or threat to a spouse of child,
expenses incurred for temporary housing,
food, child care and transportation.
• Order can be enforced by registration in
any civil court in Canada
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Conditional Sentence of
Imprisonment
• A sentence of imprisonment that can be served in the
community on mandatory and additional conditions, if
– Sentence is less that 2 years;
– Offence not punishable by a minimum term in prison;
– Offence not a terrorism or organized crime offence or a serious
personal injury offence punishable by 10 years or more and
prosecuted by indictment;
– 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.
• If a breach of any of conditions, offender can be ordered
to serve all or part of the remainder of the sentence in
prison.
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Optional conditions of conditional
sentence order
• Court can choose from this list:
– Abstain from the consumption of alcohol or other intoxicating
substances, or
– Abstain from the consumption of drugs except in accordance
with a medical prescription;
– Abstain from owning, possessing or carrying a weapon;
– Provide for the support or care of dependants;
– Perform up to 240 hours of community service over a period not
exceeding eighteen months;
– Attend a treatment program approved by the province; and
– Comply with such other reasonable conditions as 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 other offences.
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R. v. Proulx, (2001) 1 S.R.C. 61
Supreme Court of Canada
 The purpose of the conditional sentence is to reduce
incarceration rates and increase the use of restorative
principles in sentencing
 They can be used to express principles of denunciation
and deterrence
 Conditional sentences must have both punitive and
rehabilitative aspects
 They should include conditions which restrict the
offender’s liberty, and therefore conditions such as
house arrest and curfew should be the norm
 A conditional sentence need not be of the same length
as a sentence of incarceration i.e. could be longer.
Approximately 4% of sentences imposed in 2005-2006.
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Restorative Justice
•Restorative justice views crime as a wrong done to a person or the
community, rather than solely as a matter of breaking the law or
offending against the state;
•Restorative justice processes attempt to provide the offender with
the opportunity to acknowledge his/her responsibility for the harm
done by the offence and to make reparations; and
•To give the victim and community a role in determining an
appropriate outcome, through sentencing or alternative measures.
•Examples of restorative justice approaches being applied across
Canada include Victim/Offender Mediation, Sentencing and Healing
Circles and Family Group Conferences for young offenders.
Aboriginal Justice
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•
•
•
•
•
•
The overrepresentation of Aboriginal people in Canadian corrections
populations is very high. While Aboriginal people constitute 4% of Canada’s
population, they represent approximately 20% of the federal inmate
population.
As a response to dissatisfaction with the way in which Aboriginal people
experience the traditional justice system, alternative justice initiatives have
arisen in aboriginal communities, particularly in northern and western
Canada.
These initiatives are based on traditional aboriginal justice concepts and
practices which emphasize healing, forgiveness and community
involvement.
There are a range of approaches such as Elder’s Panels to advise the
sentencing judge, circle sentencing initiatives, community circles and other
peacemaking processes.
In sentencing circles, the victim, offender, family and community members
meet with a judge, lawyers, police and others to help determine what type of
sentence an offender should receive.
All parties have the opportunity to have input into the decision, however the
final decision as to the sentence is ultimately that of the judge.
Healing circles are also used as a ceremony intended to bring conflict to a
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close, allow the participants to express their feelings, and indicate that the
offender and victim have undergone personal healing.
Drug Treatment Courts
• Non-violent offenders who have a drug dependency and
who are charged with drug offences concerning small
amounts of crack/cocaine or heroin may apply to enter a
treatment program supervised by a judge;
• Some offenders are accepted into the program prior to
entering a plea to the charges. They are then referred to
drug treatment, and upon successful completion of the
requirements of the program, the charges against them
are withdrawn or stayed;
• Other offenders will enter a guilty plea prior to entering
the program. If they are successful in completing
treatment, they will receive a non-custodial sentence.
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Adult Court Processing
(by most serious offence in 2005/06)
372,084 cases
Decision
242,988
Found guilty
(65%)
109,863
Stay/Withdraw
(30%)
13,480
Acquitted
(4%)
5,753
Other decisions
(2%)
Most Serious Sentence
83,043
Prison
(34%)
CE00378E
9,671
Conditional Sentence
(4%)
68,520
Probation
(28%)
62,422
Fine
(26%)
19,332
Other sentences
(8%)
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