New Study Examines Conditional Sentences for Impaired Driving Causing Death or Bodily Harm

This archived article is from April 2005. Although every effort has been made to make sure the information presented is accurate, please note that it may contain information that is out-of-date.

Controversy surrounds the use of conditional sentences for serious crimes. Some feel conditional sentences are too lenient and want them eliminated. Others believe a carefully tailored conditional sentence can provide better public protection than a prison sentence.

From a traffic safety perspective, does it make sense to eliminate conditional sentences for cases of impaired driving causing death or bodily harm?

To examine the link between sentencing and safety, the Canada Safety Council commissioned a study. Sentencing in Cases of Impaired Driving Causing Bodily Harm or Impaired Driving Causing Death, With a Particular Emphasis on Conditional Sentencing was prepared by two University of Ottawa researchers: Julian Roberts of the Department of Criminology; and David Paciocco of the Faculty of Law. Their report, released February 25, 2005 examines the case law and reviews research on conditional sentencing.

What are conditional sentences?

The conditional sentence of imprisonment (or CSI) was introduced in 1996 as an alternate form of incarceration subject to specific criteria. It is not, as some assume, the same as probation. When the sentence is a term of imprisonment less than two years, an offender deemed not to pose a danger to society is allowed to remain in the community, but with a more stringent set of conditions than offenders on parole. The offender must abide by a number of typically punitive conditions, usually including house arrest or a strict curfew. If a condition is broken without a lawful excuse, the offender may well serve out the rest of the sentence in prison.

Since 2000, conditional sentences have become longer, and conditions stricter. Indeed, conditional sentences can be more punitive than prison sentences.

A conditional sentence combines punishment with rehabilitation and restorative justice. This combination holds more potential than incarceration in a correctional institution if the goal is to prevent the offender from continuing to endanger the public after serving the sentence.

Punitive objectives can be met because conditions restrict the offender’s liberty, with incarceration possible if any condition is violated. After time in prison, an individual may still be likely to re-offend, whereas house arrest conditions can be designed to address factors which led to the offence in the first place. Moreover, some conditional sentences force the offender to make reparations to the victim and the community while living under tight controls.

How are they used?

The absence of jail time leads some to question the appropriateness of a conditional sentence where an impaired driver has caused injury or death to others. In practice, the courts have generally accepted this position. The statistics and case analysis in the Canada Safety Council study show that these offences usually result in prison sentences, not custody at home.

The database for 2003-2004 shows that nine individuals received a conditional sentence for impaired driving causing death. In cases of impaired driving causing bodily harm cases, conditional sentences were imposed at half the rate of prison sentences. The study found that courts have been very careful about imposing conditional sentences for these serious impaired driving offences.

A thorough case review showed that conditional sentences were issued very selectively. They were ordered when there were no aggravating factors such as a poor driving record or high blood alcohol level, and typically to individuals who, given their character or circumstances, were good candidates for restorative justice. Many of the 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.

Canada’s court system requires that judges be given strong discretion. Canadian law treats sentencing as a highly individualized and case-specific process, in which conditional sentences provide an important option. When imposing sanctions, judges consider the degree of responsibility of the offender and the gravity of the offence. Those who know only of the offence and the penalty often do not realize there are other important factors to be considered at sentencing.

Is prison a deterrent?

Professors Roberts and Paciocco found no indication that the courts are mismanaging conditional sentences for these offences. Thus, a key argument in favour of eliminating this option is that the supposedly more punitive sanction of time in prison will act as a deterrent.

Is there any evidence that the threat of severe punishment does in fact discourage potential offenders? While many criminologists recognize the general deterrent effect of criminal law, most have long believed that harsher penalties do not lead to fewer offences.

The researchers cite recent studies which confirm there is little correlation between severity of sentences and number of offences. What has the greatest impact on patterns of offending is publicizing apprehension rates, or increasing the probability of being caught.

Perception and Evidence

A review of cases and research found no empirical or scientific basis for eliminating the conditional sentence as an option in aggravated impaired driving cases.
The study concludes that the only rationale for removing this option would be that a conditional sentence is simply not harsh enough to address the seriousness of the offence. This is a subjective perception. As such legislators must weigh it against the objective evidence.

To prevent offenders from continuing to drink and drive after their sentence has been completed, the law must allow sanctions to address risk factors which led to the offence in the first place. These may include alcohol dependency, relationships and attitude. For crimes related to impaired driving, removing sentencing options could compromise public safety.

Sentencing in Cases of Impaired Driving Causing Bodily Harm or Impaired Driving Causing Death, With a Particular Emphasis on Conditional Sentencing by University of Ottawa researchers Julian Roberts (Department of Criminology) and David Paciocco (Faculty of Law)