Zeal to punish eliminates a useful tool
TheStar.com – opinion/editorialopinion
Published On Sat Aug 27 2011. Emile Therien
On Aug. 31, a judge in an Ottawa courtroom will pass sentence on Jack Tobin. The Crown wants five years in prison; the defence 18 to 30 months.
Tobin, the son of former Newfoundland premier Brian Tobin, was repentant and showed remorse at the tragedy he caused because of his stupid decision to drive while drunk. By all accounts, he is an ideal candidate for restorative justice. He should be given a conditional sentence.
The “conditional sentence of imprisonment” (CSI) was introduced in Canada in 1996 as an alternate form of incarceration subject to specific criteria. It is not, as some assume, the same as probation.
When sentenced to less than two years, an offender deemed not to pose a danger to society is allowed to remain in the community, but with more stringent conditions than offenders on parole. The offender must abide by a number of typically punitive conditions, such as a strict curfew. If a condition is broken without a lawful excuse, the offender may serve out the rest of the sentence in prison.
Unfortunately, conditional sentences for the type of offence Tobin committed — impaired driving causing death — were eliminated in the last session of Parliament, thus ending Canada’s tradition of granting discretion and independence to the judiciary.
The accident last Christmas Eve that killed his friend Alex Zolpis can only be described as “tragic and senseless.” But giving Jack Tobin a prison sentence may well also prove to be “tragic and senseless,” as there is mounting evidence that jail time does not reduce the chances of re-offending.
According to Statistics Canada, there were 13,500 offenders serving conditional sentences in 2008-09, — a not insignificant number.
A 2005 study by University of Ottawa professors David Paciocco and Julian Roberts looked at conditional sentencing in cases of impaired driving causing death or bodily harm. Commissioned by the Canada Safety Council, the study reviewed the background and criteria for conditional sentences, their use in sentencing and their deterrent value. The council wanted to know when conditional sentences were being used how they affected safety. I was president of the council at the time.
Perceived as lenient, conditional sentences imposed in serious impaired driving cases have been criticized by the public, the media and advocacy groups concerned with drinking and driving. But the study dispelled this misconception and showed they were being used appropriately. From a safety perspective, conditional sentences can be a good option because they address risk factors such as alcohol dependency, relationships and attitudes that led to the offence in the first place.
The Paciocco-Roberts study found that in 2003-2004, more than two-thirds of offenders convicted of impaired driving crimes causing death and almost half of those convicted of impaired driving causing bodily harm received prison sentences. The database revealed only nine conditional sentences were handed out for impaired driving causing death (17 per cent out of a total 53 cases), and 84 for impaired driving causing bodily harm (25 per cent out of a total 339 cases).
The data showed that courts generally accepted that institutional confinement (jailing) was the most acceptable option in the majority of cases but that conditional sentences had an important if limited role. They were ordered when there were no aggravating factors (such as a high blood-alcohol count) or when individuals were perceived as good candidates for restorative justice. Many offenders had suffered personal tragedy as a result of their actions — they had injured or lost friends, partners or their own children, and often had the support of the victims’ families.
Denunciation and imprisonment satisfy society’s desire to punish offenders and reinforce shared values by deterring crime. However, there is little evidence to support the general deterrence argument
The effectiveness of the elimination of conditional sentences for impaired driving cases as a preventive measure is questionable. Arbitrary, emotional, politically expedient “quick fixes” can and do have unexpected negative consequences. Legislators concerned with a fair, compassionate and humane criminal justice system should take note.
Emile Therien is past president of the Canada Safety Council.
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