bill, said Cotler late last month, is to better protect Canadians, building on
recent legislation on human trafficking, protection of children, and the DNA
a conditional sentence can be imposed if the sentence is less than two years,
there's no mandatory minimum sentence, and the court is satisfied the community
would not be in danger.
reforms would create a presumption preventing courts from using conditional
sentences in cases of:
serious personal injury offences as defined in the Criminal Code, such as
and any other offence that is so serious that the need to condemn the act takes
precedence over any other sentencing objective.
would be required to explain in writing any exceptional circumstances that led
them to believe it would be best to use a conditional sentence in such cases.
reforms will strengthen public confidence in the conditional sentence and in
the administration of justice," said Cotler. "At the same time, they are
consistent with Canada's
balanced approach to sentencing, with harsh penalties for high-risk offenders
and the use of community-based approaches for those who commit less serious
legislation is contrary to what the Supreme Court of Canada said in 2000's R.
v. Proulx and the whole announcement seems like an exercise in public
relations, says criminal defence lawyer John A. McMunagle, of McCann Law
Offices in Ottawa.
as I recall, says there are no restrictions on the availability of a
conditional sentence save and except for what's in the legislation," he says.
frankly, stop placating the special interest groups. It's insulting to the
judges in the courts to even make this proposal because it's not a problem. I
don't understand, the government always seems to react to things and I have
never been a proponent of postage-stamp criminal justice policy work or
band-aid criminal justice policy work," McMunagle says.
not artificially hamstring the courts by saying you can't do it for this, this,
this, and this. If it meets the legislative requirements and the judicial
requirements, then impose it."
A. Botham, president of the Criminal Lawyers' Association, says she is
concerned about any attempt to impede judicial discretion.
seems to me that we need to have enough faith in our judiciary to assume that
they're going to impose the sentences that are appropriate for the offender and
the offence," she says.
they don't do that, we have appellate courts that can review that, so I don't like
to see a development where that's taken away from the judiciary and it's
legislated by Parliament. That's my concern."
says there is a misapprehension on the part of the public that somehow
conditional sentences are easy to get or that they don't constitute an
appropriate punishment, which she doesn't think is a fair assessment.
to statistics from the Department of Justice for 2003-ཀ, conditional
sentences were only used in 4.6 per cent of all Criminal Code offences and 6.3
per cent of cases involving crimes against the person.
says conditional sentences can be an effective tool, albeit one that can
sometimes be abused by defence counsel. He says the defence bar should take
some responsibility for the issue percolating to the national agenda and be
mindful not to abuse conditional sentences.
faith in our courts and our judges who are doing an absolutely outstanding job
in weeding out those rare cases where the defence lawyer should never have
asked for a conditional sentence, and I have
faith in our judges that they will not grant a conditional sentence when it's
not appropriate," he says. "If they do, then the Crown can appeal, just like if
the defence believes in their heart of hearts that this should have been a
conditional sentence, they can appeal and get a higher court's view of the
McMunagle and Botham say they would need to read the proposed legislation in
detail, but at first glance the restriction for conditional sentences in "all
forms of sexual assault" seems to be a very broad category.
assault runs the gamut from grabbing someone's ass all the way up to something
horrible and violent and tragic," says McMunagle. "I think we have to make a
distinction between the gamut of various sexual assault. I don't think you can
just blanketly say, 'No, it's not available.'"
a pretty broad offence," says Botham. "Maybe it's more carefully delineated in
the legislation but that's a pretty broad situation. There are some convictions
for sexual offences where a suspended sentence is found to be appropriate, so
if you can give a suspended sentence why can't you give a conditional sentence,
which is a more significant penalty?"
says by introducing more mandatory sentencing requirements, the individual
circumstances of the offender and offence are ignored, "and it really ties
judges' hands. I think that's a bigger concern."
think we have to trust, to have some faith in our judges that they have some
notion of how cases such as Proulx have been interpreted by the Court of Appeal
and have an appreciation of the context in which those conditional sentences
are imposed," she says.
says political interests should play no part in sentencing.
bottom line is it's unnecessary meddling and I just see it, frankly, as an
exercise in placating special interest groups, which is unfortunately what's
been driving criminal justice policy for way too long."