Conditional sentencing in Canada

Conditional sentencing became part of the Canadian justice system with the passage of Bill C-41 in 1995.

A closer look at the Conservatives' proposed changes

Stephen Harper does not like conditional sentencing.

"Unlike the Opposition parties," the prime minister declared at a 2008 election rally in Saskatoon, "we don't believe house arrest is a suitable punishment for serious crime."

In his first term in office, following the 2006 election, Harper tried to impose severe restrictions on conditional sentencing for serious crimes — only to have his plan thwarted by all three opposition parties.

Justice Minister Rob Nicholson now says the government is ready to take another crack at toughening up the law. The Conservative proposal, which would end conditional sentences for perpetrators of property and serious crimes such as arson and kidnapping, was introduced in the House on June 15, 2009.

What is conditional sentencing?

Conditional sentencing became part of the Canadian justice system with the passage of Bill C-41 in 1995. Canadian lawmakers were concerned with the overuse of incarceration as a means of addressing crime in Canada, particularly as it applied to aboriginal peoples.

Rather than focusing on incarceration, conditional sentencing is designed to keep some offenders out of jail and in the community. Often this means serving their sentence under "house arrest" in their own homes where they can continue to work or attend school.

Not all offenders are eligible for the program. To be considered, a sentence must be less than two years long, must not be an offence that carries a mandatory minimum sentence, and the judge must be convinced the offender does not pose a danger to community.

Inmates accepted in the program must also meet certain court-imposed conditions. Abstaining from alcohol and drug use and seeking treatment for addiction are the most common conditions, followed by curfews and community service.

In 2003-04, about 13,000 or 12 per cent of adults under correctional supervision, were living in the community under a conditional sentence. The average length of that sentence was about eight months.

Who gets a conditional sentence?

In all likelihood, Harper chose Saskatchewan as the location for his 2008 attack on conditional sentences because that province has one of the highest crime rates in the country. "Too many criminals on house arrest should never have been there in the first place," he proclaimed. He went on to note that in Saskatchewan, 39 per cent of criminals on conditional sentences were sent back to jail for breaching their conditions.

But who are these people, what were their crimes, and what did they do to wind up back in jail?

The aboriginal issue

Harper doesn't talk about aboriginal people when he makes his get-tough-on-crime speeches. There are rarely aboriginal faces standing in rapt attention behind him on the podium. But you can't really talk about crime in Canada without talking about the extraordinarily high rate of aboriginal incarceration.

Nationwide, aboriginal people make up about three per cent of our total population, but about 17 per cent of the roughly 152,000 adults under the supervision of correctional services agencies in Canada are aboriginal adults.

According to a report prepared by Statistics Canada, there were about a thousand people serving conditional sentences in the province of Saskatchewan in 2001. That represented about 18 per cent of the total number of offenders in the province.

About 84 per cent of the people on conditional sentences were male. Their mean age was 31. The median length of their sentence was six months. And fully 72 per cent of people commencing conditional sentences were aboriginal people.

The crimes

About 39 per cent of aboriginal people serving conditional sentences in Saskatchewan in 2001 had committed violent crimes, about 30 per cent had committed property-related crimes, and about six per cent had committed other federal crimes including drug-related offences.

The conditions

The requirement to abstain from alcohol/drugs (40 per cent) and attend an alcohol/drug rehabilitation program (38 per cent) were the most common conditions imposed on offenders. Other common conditions include maintaining a residence (25 per cent), curfew (20 per cent), electronic monitoring (21 per cent) and community service work (22 per cent).

The number of conditions imposed on offenders has grown dramatically over the past few years, and as the number of conditions has grown, so too has the number of people who breach them.

In 1999-00, 72 per cent of conditional sentences in Saskatchewan were completed successfully, but in 2000-01, that number had shrunk to 43 per cent. And as Harper pointed out in 2008, nearly 40 per cent of those breaches resulted in the offender going back to jail.

The caveats

But that doesn't necessarily mean that offenders on conditional sentences have resumed a life of crime. The vast majority of people who are sent back into custody have broken their conditions, not the law, but judges are now much more likely than they used to be to throw people who breach their conditions back into jail.

And though there have been several high-profile cases of people out on conditional sentences engaging in violent crime, all available data suggests that an offender on a conditional sentence is no more likely to re-offend than someone who has served his or her time in jail.

At the same time, there is considerable evidence to indicate that rehabilitation and re-integration into the community has a much greater chance of succeeding outside prison walls than inside.

The cost

And then there is the cost. In Saskatoon, Harper acknowledged that cutting the number of people eligible for conditional sentencing would require more jail cells, but he said the number is "not enormous" and the cost would be "small and manageable."

He may be right, but incarceration is not cheap. It costs Corrections Canada $110,223 to keep a male inmate in a maximum security institution for a year ($150,867 for a woman). Medium and minimum security inmates cost more than $70,000 a year. And building a new federal prison would probably cost between $100 million and $150 million.

The reality

Harper makes his case for cutting back on conditional sentencing in Canada's correctional system in the interests of public safety.

If the Conservative bill is passed, the one certainty is that there will be a significant increase in the number of young aboriginal men serving time behind bars.

Given all that we know about violence, drug dealing and gang recruitment inside Canada's prisons, Canadians might well wonder how much safer they will actually be.