The Prospective Devitalization of Conditional Sentences

Abstract

It goes without saying that at the time of the most comprehensive review of sentencing principles in Canada in 1996, there was a significant overuse of imprisonment as a disposition for a criminal conviction. As such, the introduction of conditional sentences, aptly described as custody in the community, was seen as a viable intermediate measure between probation and incarceration. Nonetheless, over the course of the last fifteen years there has been public concern that such sentences were too soft on criminals and judicial concern that the imposition of a conditional sentence would be ineffective in the absence of the requisite supervisory resources. Parliament has enacted various measures to restrict the availability of this sanction and most recently the Harper tough on crime agenda has proposed a significant restriction that would render conditional sentences available for only those crimes that most likely would not result in custody. The further away this sentencing option travels from imprisonment, albeit in the community, the closer to redundancy it becomes to the long-standing and well understood sanction of probation.