Conditional sentences.

From the time that he was 22 years old until he was 28 years old, "L.W." forced his female cousin to commit indecent sexual acts for him. This started when she was six years old and continued until she was twelve, and it happened 10 to 12 times. L.W. told the girl not to tell anyone about what had happened, especially her parents, and added that he had a gun. The implication of that last comment was left to her common sense. This incident had a profound effect on the victim as she grew up, resonating even in her marital relations with her husband and her ability to change her baby son's diaper.

When L.W. was brought to atone for his crimes 26 years later, the victim described these consequences to the court. The court also heard from witnesses testifying as to L.W.'s character, his work record, his time in the Armed Forces, and other mitigating factors. The mayor, his parish priest, and the town postmaster all described a good citizen who was different from the man with a drinking problem 20 years earlier.

In 1995, Allan Rock, then Canada's Justice Minister, introduced important amendments to the Criminal Code's sentencing provisions in Bill C-41. Part of the overhaul was the introduction of an entirely new sentence for Canadian criminal courts, the "conditional sentence." The Minister lauded this as part of an overall strategy that distinguished between high and low risk offenders. Better identification of these two groups, it was said, would allow expensive jail accommodations to be better used and a dress the overcrowding problem.

Justice Canada's public announcements were specific as to the intent of the reforms: "[Sentencing reform] gives the courts more options to distinguish between violent, serious crimes that require jail and less-serious crimes that can be dealt within the community. It also adds a new type of sentence to the Criminal Code, called a `conditional sentence', that will allow more offenders guilty of less-serious crimes to serve their sentences in the community under appropriate control and supervision."

The conditional sentence was obviously intended for offenders who committed "less-serious crimes". It allows a jail sentence to be served "in the community" while the offender is bound by conditions. There are mandatory conditions which require the offender to keep the peace, report to court, report to a supervisor, stay in the court's jurisdiction unless given permission, and advise of his address and employment situation.

These mandatory conditions are obviously lenient with no punitive element to them whatsoever. The teeth were supposed to be found in the imposition of "optional conditions" which were, essentially, anything reasonable that the judge wanted to add, such as house arrest in many cases. They are optional, though. Clearly this was not Alcatraz.

With this background as to the types of offences that were to qualify, the law was proclaimed in force in September 1996.

The floodgates were wide open and judges started handing out conditional sentences left and right. With the clear wording of the Code, they were not to send people to jail unless, as the section read, there was "danger to the community."

How could an employee who stole money -- even lots of money -- from her employer be considered "dangerous"? Conditional sentence granted.

How could an upstanding citizen who just happened to get drunk and kill someone be considered "dangerous"? Conditional sentence granted.

And L.W. -- he got a conditional sentence, too. The judge agreed with him that he was no longer dangerous.

Are these crimes which Canadians consider to be "less serious"? The Alberta Court of Appeal sure didn't think so. In 1999, Chief Justice Catherine Fraser penned Regina v. Brady, a decision specifically intended to rein in the province's sentencing judges.

"We view the conditional sentence in perspective. It is only one more in a range of sentencing options for trial judges in this country. It is a welcome addition, as it fills a small gap which previously existed. We discuss the gap later. Like all tools or instruments, it is to be used in the right situation, not in the wrong situation. Surgery should not be performed simply because the surgeon has bought a new scalpel. Nor should laser surgery be performed simply because the surgeon has got a new laser instrument, and it is fashionable.

"Properly used and carefully crafted, a conditional sentence will serve its intended purpose. Improperly used or skimpily drafted, it will undermine respect for the law."

The Chief Justice, using plain English and common sense, pointed out how different a conditional sentence is from real jail:

"Saying that such a conditional sentence is tantamount to imprisonment does not make it so. The citizens of this country would never equate house arrest with prison. And with good reason. Staying at home means more comfort, more options, more flexibility; in short, considerably more freedom than jail.

"Many law-abiding Canadians work very hard and would dearly love to spend more time at home."

In the end, the Alberta Court of Appeal emphasized that deterrence and denunciation are valuable, legitimate, and important components of the sentencing process, and that they can sometimes only be met with real time behind bars. So the Court began overturning conditional sentences for people stealing from their employers, for sex offenders, for wife beaters -- both to punish them and to discourage others from behaving likewise.

However, not all judges agreed with Alberta's. The Manitoba Court of Appeal, for example, pointed to the repeated statements from Justice Minister Rock about reducing overcrowding in jails and the use of the word "dangerous" as they upheld and gave out conditional sentences for convenience store robberies, serious sexual assaults, and for impaired driving causing death. It was up to the Supreme Court of Canada to settle the matter.

While the Supreme Court heard argument and prepared its decision, the House of Commons was rife with questions about the issue. Time and again, the federal government urged people to wait for the Court to clarify the matter.

It turned out that even the highest court in the land had problems figuring out this regime. Then Chief Justice Lamer commenced the judgment in the lead case, Proulx, by echoing the "overcrowding" sentiments emphasized in Manitoba. Writing for the entire Court, the Chief Justice expressed the principles to be employed in determining whether a conditional sentence is appropriate. He emphasized that conditional sentences are available for any offence except those which Parliament has expressly excluded. In so doing they rejected the position taken by many provincial appellate courts that some offences (like sexual assault and embezzlement) should only get conditional sentences in "exceptional circumstances." The Court explains the process of determining whether a conditional sentence is appropriate, by deciding whether probation and a penitentiary sentence are ruled out, then embarking on an examination of the offence and offender. Lastly, the judgment sets out the types of conditions which should be added in order to make the conditional sentence distinct from a probation order. The remaining four cases gave the Court an opportunity to demonstrate how those principles work in practice. In each of them, the members of the Court were unable to agree on how the principles applied -- to the point where two of the judgments resulted in 4-to-4 splits.

Despite agreeing with large passages of Chief Justice Fraser's analysis in Brady, the Supreme Court upheld conditional sentences for a lawyer embezzling from his client and for L.W.

These decisions have now re-ignited the argument over the suitability of conditional sentences all over the country. Even the Alberta Court of Appeal is engaged in heated debate over Proulx's effect.

A private member's bill was introduced in the last session of Parliament to clarify some of this quagmire and bring the conditional sentence reality closer to what was allegedly intended in 1996. Bill C-306 would have expressly stipulated which offences could not result in conditional sentences, namely, crimes of violence and serious drug crimes. As a private member's bill, it had no realistic chance of ever becoming law, but the idea behind it was so laudable that it ought to be considered for adoption as a government bill.

It is most commendable of the federal Justice Minister to take the position that legislative interpretation is a matter for the courts. However it has become glaringly apparent over the course of years that judges are using conditional sentences for purposes which were never intended by Canada's law-makers. Some of these judges have remarked right in their judgments how easy it would be for Parliament to give them more guidance if they didn't like how the law was being applied.

It's time to accept that invitation.