Who is eligible for a Conditional Sentence?

What is a Conditional Sentence?

A conditional sentence is a prison sentence that can be served in the community. It does not involve time served in jail, but rather the individual is allowed to live at home but with various potentially restrictive conditions.  A person that is sentenced to serve a conditional sentence will have to abide by certain mandatory conditions as well as optional conditions a judge may impose. Conditions can include keeping the peace,  non-communication certain persons, geographic limitations, house arrest, curfew, wearing an ankle monitoring device amongst many other possible conditions.

 The law governing the eligibility for a conditional sentence can be found in s. 742.1 of the Criminal Code. The section outlines the statutory preconditions an accused who has been found guilty has to meet in order to be eligible for a conditional sentence.

There are numerous statutory preconditions to receiving a conditional sentence. These preconditions include, that a conditional sentence would not put the community in danger, that the offence does not feature a minimum sentence or certain maximum sentences and that the offence is unrelated to certain offences associated with organized crime or terrorism. For a detailed list of the statutory bars to receiving a conditional sentence it is recommended to consult s. 742.1 of the Criminal Code, directly.

 

The Conditional Sentence and Sentencing

Even if an offender is eligible for a conditional sentence, this does not mean that the judge will necessarily impose one. To understand the numerous factors that go into the judge’s decision-making process one needs to be familiar with the basic principles and objectives of sentencing.

After an accused has been pronounced guilty, they will undergo sentencing. In the sentencing stage of a criminal trial the judge will decide the punishment appropriate for the offender. While there are certain legal constraints on the decision-making process such as mandatory minimum sentences and maximum sentences, sentencing is understood to be a largely “individualized process.” During sentencing, the judge attempts to impose a sentence that is proportional to the circumstances that are unique to the offender and the offence.

 

• Criminal Code, R.S.C. 1985, c. C-46, s. 742.3 (1) [Criminal Code]
• Criminal Code, s. 742.3 (2)
• Criminal Code, s. 742.3 (1)(a)
• Criminal Code, s. 742.3 (2)(a.3)
• Ibid
• Criminal Code, s. 742.1
• See for example Criminal Code s. 344(1)(a)(i)
• See for example Criminal Code s. 380(1)(a)
• R. v. Proulx, 2000 SCC 5 at para 82
• Ibid

The Criminal Code outlines the principles that are supposed to be considered by the sentencing judge. These principles are denunciation,deterrence, removing offenders from the public, if necessary, rehabilitation, making reparations to the victim and the community, and fostering responsibility and awareness in the offender for the crime they have committed.

Some of these principles highlight the restorative aspect of sentencing (i.e emphasizing the need to reintegrate the offender into society) while others highlight the more punitive aspects of sentencing.

The conditional sentence as well as the bill that added the conditional sentence to the Criminal Code as a whole, shifted the laws of sentencing towards a more restorative framework. The conditional sentence is well suited to advance the restorative objectives of sentencing because it allows the offender to serve their sentence in the community. Serving their sentence in the community may be conducive to rehabilitation, instilling a sense of responsibility and allowing the offender to make reparations to the victim and community.

Since the conditional sentence highlights the restorative aspect of sentencing, receiving a conditional sentence is less likely when it comes to offences that primarily call for deterrence or denunciation. As a result, there are some offences who, in theory, are eligible to be punished by a conditional sentence but in practice the sentencing judge will be reluctant to impose one, due to deterrence or denunciation being the primary sentencing objectives. However, the sentencing principles of deterrence and denunciation can be addressed through a properly crafted conditional sentence.

Accordingly, in order to assess the likelihood of a conditional sentence being imposed it is often necessary to survey past sentencing decisions in relation to the offence that was committed even if, at face value, the offence meets all the statutory requirements of s. 742.1.

 

Conclusion

Sentencing is a complex process that is highly individualized. In order to assess the best course of action in relation to asking the court to impose a conditional sentence one needs to consider statutory law, case law as well as the unique circumstances of the offence and the offender. On account of this complexity, it is best to consult with an experienced criminal lawyer when faced with a criminal charge and possible sentencing hearing.

 

• Criminal Code s. 718(a)
• Ibid, s. 718(b)
• Ibid, Code s. 718(c)
• Criminal Code s. 718(d)
• Criminal Code s. 718(e)
• Criminal Code s. 718(f)
• R. v. Proulx, 2000 SCC 5 at para 19
• Ibid at para 22
• R. v. Proulx, 2000 SCC 5
• Criminal Code s. 742.1