Sentencing and Safety

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has been made to make sure the information presented is accurate, please note that it may contain information that is out-of-date.

A new study by two University of Ottawa researchers looks at conditional sentencing in cases of impaired driving causing death or bodily harm. It reviews the background and criteria for conditional sentences, their use in sentencing for impaired driving causing death or bodily harm, and current research on the deterrent value of sentencing.

The Canada Safety Council commissioned the groundbreaking study by David Paciocco and Julian Roberts to obtain an objective analysis upon which to base its policy position. The Council wanted to know — exactly what are conditional sentences, when are they being used, and how could they affect safety?”

Conditional sentences imposed in serious impaired driving cases have been called a “travesty of justice.” The public perception is that they are quite lenient, but are very often used for impaired driving crimes causing death and injury. The study dispels common misconceptions about conditional sentences, and shows they are being used appropriately in these cases. From a safety perspective they can be a good option because they can address risk factors such as alcohol dependency.

The conditional sentence of imprisonment (or CSI) has only been available to Canadian courts since 1996. In 2000, the Supreme Court clarified its use and clearly differentiated it from probation. Since then, conditional sentences have become longer and more severe.In 2003-2004, over two-thirds of offenders convicted of impaired driving causing death and almost half of those convicted of impaired driving causing bodily harm received prison sentences. The database reveals only nine conditional sentences were handed out for impaired driving causing death (17 percent out of a total 53 cases), and 84 for impaired driving causing bodily harm (25 percent out of a total 339 cases).

The data show that courts generally accept that institutional confinement, and not custody at home, is the most appropriate sentence in the majority of these cases. The conditional sentence has an important but confined role.

The study suggests that the main reasons why conditional sentences are not used more often are denunciation and general deterrence. Prison sentences are perceived as harsher punishment.

Denunciation is society’s condemnation of the offender’s conduct. It satisfies society’s desire and need to condemn certain conduct, and also plays a positive role in communicating and reinforcing society’s shared set of values. The sentencing rationale requires proportional penalties, and in aggravated impaired driving offences, by definition, the harm is significant. The need for denunciation represents an expression of values that cannot be measured scientifically.

One of the goals of criminal law is to deter offenders from re-offending, and to deter potential offenders who might contemplate breaking the law. However, there is little evidence in support of the general deterrence argument — that is, that the more severe the punishment, the greater the deterrent effect. As the study points out, research on the question does not support that proposition. The certainty of penalties is the most likely explanation for deterrent effects.