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Justice and Human Rights

Sentencing in Canada: Recent Developments

Marcia Jones, Cynthia Kirkby

Issue | Issues related to the sentencing, release and pardoning of offenders have recently garnered much attention in Parliament.

Synopsis | This overview highlights recent developments in the area of sentencing, with a focus on mandatory minimum sentences, conditional sentences, conditional release, the sex offender registry and pardons. Some of the legislative changes that were made and proposed during the last session of the 40th Parliament are highlighted.

Timing | Many of the amendments discussed in this overview come into force on proclamation, and had not been proclaimed in force at time of writing. It is possible that amendments that died on the Order Paper will be reintroduced in the 41st Parliament.

In the criminal justice system, perhaps nothing draws public attention more than the sentencing, release and pardoning of offenders. Unlike other jurisdictions, Canada has no sentencing commission to provide systemic analysis and research in this area.

Recent amendments to Canada’s sentencing regime are said to focus on repeat and serious offenders and hold offenders accountable, but will likely increase the use and duration of incarceration. While some contend that these measures will enhance public safety, others argue they could have a significant financial and human cost, with little benefit for public safety.

The following discussion highlights five areas where amendments were proposed during the last session of the 40th Parliament.

Mandatory Minimum Sentences

Mandatory minimum sentences (MMSs) signal that an offence warrants at least a certain period of incarceration. The first Criminal Code (1892) contained MMSs; their number has increased from six in 1976 to over 40 now.1 Proponents of MMSs say they reduce sentencing disparity, although opponents argue that, by limiting judicial discretion, they result in disproportionate sentences in some cases, or plea bargains to avoid the MMSs.

Pursuant to bills C-21 and S-9, respectively, MMSs will now apply to fraud over $1 million and repeated cases of auto theft. Bills introducing MMSs for drug-related offences (S-10) and additional sexual offences against children (C-54) died on the Order Paper.

Conditional Sentences

Conditional sentences allow for certain sentences of imprisonment of under two years to be served in the community. Proponents say conditional sentences reduce the use of incarceration while emphasizing restorative justice, but critics say they are too lenient for some offences.

Bills Related to Canada’s Sentencing Regime Introduced in the 3rd Session of the 40th Parliament
Source: Table prepared by the Library of Parliament using data from LEGISinfo
(Parliament of Canada website).

The use of conditional sentences has been progressively restricted since their introduction in 1996. Such sentences are unavailable for offences with an MMS, and 2007 Criminal Code amendments preclude their use for certain “serious personal injury,” terrorism and organized crime offences. Bill C-16, which died on the Order Paper, would have clarified that they are unavailable for certain indictable offences, including abduction and criminal harassment.

Conditional Release

In 2007, a government-appointed panel recommended that two types of conditional release for offenders in federal penitentiaries be eliminated, to enhance offender accountability and to lower recidivism.2 Under Accelerated Parole Review (APR), qualifying offenders are eligible for day parole after serving the greater of one sixth or six months of their sentence, and cannot be refused parole unless there is reason to believe that they will commit a violent offence. Statutory release is automatically granted to most offenders after serving two thirds of their sentence, in order to supervise their gradual reintegration into the community.

Bill C-59 eliminated APR. Bill C-39, which would have clarified the scope of statutory release and allowed victims to present statements at parole hearings, died on the Order Paper. Despite the panel’s recommendations, critics believe that eliminating APR and statutory release will overburden the prison system and reduce opportunities for offenders to reintegrate into the community.

Sex Offender Registry

The sex offender registry is intended to help police investigate sexual crimes through the registration of such information as what convicted sex offenders look like, where they live and work, and certain offence-related details.

Due to Bill S-2, all individuals convicted of offences such as sexual assault and those involving child pornography will automatically be included in the national registry. Some suggest this could make the registry less useful during investigations, since police would have many low-risk suspects to rule out. Others believe the registry should be made public, as in certain American states. Bill C-54, which would have recognized additional sexual offences against children for which registration would have been mandatory, died on the Order Paper.

Pardons

A pardon is a formal attempt to remove the stigma attached to having a criminal record. Since pardons may make it easier to obtain housing or employment, some believe they may encourage offenders to be law-abiding, and thereby increase public safety.

Bill C-23A extended, for many offences, the number of years to wait before applying for a pardon, and added further criteria, including whether the pardon could bring the administration of justice into disrepute. The application fee also recently tripled, from $50 to $150. A further increase to $631 has been proposed, to better reflect the processing cost;3 advocates say this fee could be prohibitive. Bill C-23B, which would have changed the term “pardon” – suggesting forgiveness – to “record suspension,” died on the Order Paper.

Further Reading

  1. Julian Roberts, Nicole Crutcher and Paul Verbrugge, “Public Attitudes to Sentencing in Canada: Exploring Recent Findings,” Canadian Journal of Criminology and Criminal Justice, Vol. 49, 2007, pp. 75–107.
  2. Correctional Service of Canada Review Panel, A Roadmap to Strengthening Public Safety, October 2007.
  3. Parole Board of Canada, “User Fees and Service Standards for the Processing of Pardon Applications: Discussion Paper,” February 2011.

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