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

2 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.

3 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 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 community- based sentences.

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 (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 (e)).

5 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.

6 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.

7 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

8 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.

9 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

10 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

11 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.

12 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.

13 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

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.

15 Aboriginal Justice 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 close, allow the participants to express their feelings, and indicate that the offender and victim have undergone personal healing.

16 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.

17 Adult Court Processing (by most serious offence in 2005/06) 372,084 cases Decision 242,988 Found guilty (65%) Most Serious Sentence 83,043 Prison (34%) 109,863 Stay/Withdraw (30%) 13,480 Acquitted (4%) 5,753 Other decisions (2%) 9,671 Conditional Sentence (4%) 68,520 Probation (28%) 62,422 Fine (26%) 19,332 Other sentences (8%) CE00378E