Since 1996, judges in Toronto and throughout Canada have been able to sentence those found guilty of crimes like break and enter (if proceeded by way of indictment and not in relation to a dwelling house) to a conditional sentence as an alternative to incarceration. Canada has one of the highest rates of adult incarceration in the world.
The conditional sentence was designed to allow some offenders who are sentenced to serve a prison term of less than 2 years to serve their sentence out in the community, under strict conditions and supervision. Conditional sentences are very popular with Toronto judges. Since the introduction of the conditional sentence, Toronto criminal lawyers have seen the rate of incarceration jump from 37% of convicted offenders in 1997 to 42% of convicted offenders in 2000, mainly because judges are granting conditional sentences where in the past they may have imposed a probation order rather than a sentence of incarceration.
Before choosing to impose a conditional sentence, a judge must be satisfied that the appropriate term of imprisonment is less than two years, that the offender does not pose a threat to the community, and that service of the sentence in the community would be consistent with the fundamental principles of sentencing outlined in the Criminal Code. In addition, a judge cannot impose a conditional sentence if the offence for which the offender is convicted carries a minimum sentence. Moreover, in 2007, Bill C-9 was passed, which made it impossible for judges to impose conditional sentences if the offence for which the offender is convicted is punishable by 10 years or more and is classified as a serious personal injury offence (e.g., sexual assault, aggravated assault, assault with a weapon, etc.), a terrorism offence, or an organized crime offence.
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A conditional sentence is not the same as probation, though the optics are similar since in both circumstances the offender lives in the community but supervised by a Conditional Sentence supervisor and subject to conditions. However, according to the Supreme Court of Canada, probation is appropriate where the focus is on rehabilitation, whereas a conditional sentence is appropriate where the focus is on both rehabilitating and punishing the offender. A conditional sentence is imprisonment without incarceration in a custodial environment. Therefore, it is only appropriate to impose a conditional sentence in circumstances where imprisonment is warranted. Because of the focus on punishment, the conditions attached to a conditional sentence are often much more restrictive than those attached to a probation order. According to the Supreme Court, house arrest should be a common requirement of a conditional sentence.
The Criminal Code outlines several mandatory and/or optional conditions of a conditional sentence. Mandatory conditions include keeping the peace and being of good behaviour, reporting to a supervisor, and remaining in the jurisdiction of the court. Optional conditions include a condition to abstain from drugs and/or alcohol, to abstain from owning, possessing or carrying a weapon, to provide support and care for any dependents, or to perform up to 240 hours of community service. The judge also has the power to impose any reasonable condition the court considers desirable in the circumstances. It is by virtue of this authority, that a Court will impose a condition of house arrest.
A condition of house arrest requires that the offender remain within in his home for a prescribed period of time. The conditional sentence order will ordinarily set out specific circumstances in which the offender may leave his or her home, for example, to go to the hospital in case of emergency, to report in with his or her court appointed supervisor, to go to work, or to go to school. At all other times, the offender must remain within the boundaries of his or her property. Often, the Court will allow for a small window of opportunity for the offender to look after their basic needs (for instance to shop for necessities). The Court will also ordinarily allow an exception for religious observation.
Compliance with a term of house arrest is monitored by the police and the conditional sentence supervisor. However, there is a growing trend for judges to enroll offenders in the Electronic Supervision Program as a condition of their conditional sentence. The Electronic Supervision Program uses electronic monitoring technology to monitor an offender’s compliance with the terms of his or her house arrest. Offenders are fitted with a tamper-resistant, radio frequency based anklet transmitter. The anklet will send radio frequency signals to a receiver device installed in the individual’s residence. The offender’s presence or absence from the home is monitored by the Ontario Ministry’s Monitoring Center, 24 hours a day, seven days a week. Any violation of the individual’s conditional sentence as well as any technical issues with the monitoring equipment (including any attempt to tamper with an anklet or receiving device) will be immediately reported through a central computer to the Ministry’s Monitoring Center. Registration in the Electronic Supervision Program is only an available condition for adult offenders. To be eligible for the Electronic Supervision Program, the offender must have a residence and a landline telephone. Toronto criminal defence lawyers have struggled with the growing use of electronic monitoring; however, Toronto lawyers have nonetheless noticed an increased use of these devices in recent years.
In Canada, the average length of a conditional sentence is 8 months. All or part of that may be spent under house arrest. As the sentence progresses, the conditions of a conditional sentence can be varied by a judge upon application by the offender and with the support of the conditional sentence supervisor. If the offender fails to comply with his or her conditional sentence, for example by violating his or her house arrest, he or she may be arrested and ordered to appear before a judge at some point in the next 30 days. If the judge is satisfied that the offender breached a condition of his or her conditional sentence, the judge may do nothing, vary the optional conditions, require the offender to serve a portion of the remainder of his or her term in custody, or require that the offender serve the entire remainder of his or her term in custody.