Conditional Sentences, Restorative Justice, Net-Widening and Aboriginal Offenders

Source: (2000) In, Canada Department of Justice, The Changing Face of Conditional Sentencing. Ottawa ON: Canada Department of Justice. Pp. 25-37.

With conditional sentencing, the Canada Supreme Court has encouraged the use of punitive conditions such as house arrest and curfews and onerous restorative conditions such as treatment orders. It has also authorized trial judges to order conditional sentences that are longer than equivalent jail terms and has created a new presumption that offenders will be jailed upon proof of breach for the duration of the conditional sentences. These factors make conditional sentences more meaningful, but they also contribute to net widening and even the eventual imprisonment of offenders serving conditional sentences. The Court has not prohibited the use of conditional sentencing as a disproportionate response to serious crime for Aboriginal and other offenders, but it has suggested that imprisonment will be justified in such cases for reasons of deterrence and denunciation. Whether conditional sentences are used as a real alternative to jail will largely depend on local circumstances including the availability of treatment and restorative justice programs and the exercise of discretion by sentencing judges and prosecutors. Although the Court does indicate that conditional sentences should only be used as an alternative to imprisonment, there are concerns that net widening may continue and unintentionally be increased. Offenders will face onerous punitive and restorative conditions for a longer period than if they had been imprisoned. For Aboriginal offenders, this increases the chances for breach. The Court has created a presumption that offenders who breach conditions should be imprisoned for the duration of the conditional sentence. Conditional sentences could then increase the imprisonment of Aboriginal and other offenders. Abstract courtesy of National Criminal Justice Reference Service, www.ncjrs.org.