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The limitations on the availability of Conditional Sentence Orders (CSOs) were gradually put in place for good reason. The public lost confidence in the ability of the justice system to appropriately use this effective tool.

But the limitations are also unfortunate and have a disproportionate effect on Indigenous offenders from remote communities. With the appropriate structures in place, it is conceivable that the limitations could be removed while maintaining public support for the CSO regime.

Maximum Flexibility

What I’m proposing is that many of the conditions a sentence must meet before a Conditional Sentence Order can be imposed be removed. Under this proposal, all of the following would be excised from the code:

  • Charge-specific exclusions (including sexual assault and other violent crimes)
  • Sentence limits (the two-years-less-one day limit)
  • The maximum-sentence exclusion prohibiting CSOs for offences with max terms of 14 years or more
  • The mandatory minimum exclusion

It would still be necessary for a CSO to be compatible with the fundamental principle of sentencing before one could be imposed. For that to happen, it’s likely that new structures and systems would have to be put in place by remote and northern communities. (More on that later in the article.)

Effectively, I’m suggesting that a maximum degree of flexibility be afforded to sentencing judges when considering a CSO.

Public Confidence in CSOs

It’s too bad that the judiciary and the Bar used CSOs the way they did when they were first made available. Extraordinarily serious offences were frequently minimized and their dangerous perpetrators were allowed to serve out their (relatively short) sentences from home. Sentences like these included little in the way of punishment or accountability.

In fact, at least until I retired from the criminal law in 2018, some judges continued to abuse and misuse CSOs. I cannot count how many times I’ve seen a CSO imposed on a person who could not reasonably be viewed as anything but a major public safety risk. I cannot count how many times I’ve seen people repeatedly violate the terms of their CSOs only to be re-released immediately with more lenient conditions.

But CSOs don’t have to be this way. They can be meaningful, punitive consequences that avoid the most devastating effects of incarceration on offenders. But to reach that goal the judiciary has to demonstrate that its willing to use CSOs properly.

What Jail Means

I referred above to the devastating effects of incarceration. In my view, there’s no group of people more negatively affected by incarceration than Indigenous people living in remote and northern communities.

They feel the effects of incarceration more acutely for several reasons, including:

  • The jail they go to will almost certainly be huge distances from home, ensuring they lose all personal contact with their family and friends.
  • The jail they go to will almost certainly be unfamiliar with the unique culture and character of their home community.
  • They are likely to be in an unstable housing situation and may lose their home permanently when they’re sent of to prison.

There are countless other reasons, of course, but there’s no denying that someone from Brochet, Manitoba will suffer acutely when they’re sent to serve time hundreds of kilometres away from their family. They’ll suffer in a way that a Winnipeg, Manitoba resident won’t when he’s sent to serve time an hour or two down the road.

I don’t mean to suggest that jail isn’t profoundly disruptive for everyone who goes. It is. But it’s particularly harmful for Indigenous residents of northern and remote communities.

I suggest that the particularly profound impact of incarceration on remote Indigenous people demands that we make special efforts to avoid disrupting their lives with jail sentences. Instead, what we’ve done is create preconditions to the use of sentencing tools that exclude these very people.

CSO Limitations Are Incompatible With Gladue Principles

The limitations on the use of CSOs don’t, on their face, target Indigenous people living in remote communities. They do, however, have knock-on effects and unintended consequences that ensure people in this category are locked up more often.

Indigenous Offences Are Often Serious

The prohibition against the imposition of a CSO for “serious” offences disproportionately affects people living in remote and northern reserves. Crime in these areas tends to be more serious than in other places.

It’s not unusual for a northern docket on a remote reserve to include many aggravated and sexual assaults, assaults causing bodily harm and assaults with weapon, even if the community itself is no bigger than a small town.

By automatically excluding all offences that fall into these categories, we disproportionately target people from remote reserves with crime issues.

Indigenous Offences Are Often Violent

Indigenous offenders are not going to jail en masse for securities fraud and treason. They’re going in for fights, stabbings, rapes, shootings, robberies, and similar offences.

These kinds of offences are excluded from the CSO regime. I’m not suggesting that the public didn’t have a very good reason to oppose the imposition of CSOs for things like sexual assault. I’m suggesting that targeting violent offences specifically will necessarily result in a disproportionate number of people from remote Indigenous communities going to jail.

Indigenous Offenders Are Often Risky

Indigenous offenders frequently have characteristics that make them a greater risk to reoffend. They come from communities deprived of even basic rehabilitative mechanisms. They often have criminal records. They’re frequently the victims of childhood deprivation and abuse. The typical Pre-Sentence Report for an offender from Shamattawa, Manitoba reads like a laundry list of risk factors.

Recognizing the Contradiction

I suggest that the correct response to these difficulties is not to tighten our grip on CSOs, but to first recognize that there is a contradiction inherent in maintaining a commitment to Gladue principles and insisting on jail sentences for serious, violent crime.

Indigenous people from remote areas are far more likely to commit these types of crime than anyone else in our society. We can’t be tough on violent crime without being tough on Indigenous offenders from impoverished and remote communities. Most people want to be the former without being the latter, and that’s just not possible.

Insisting on Community Alternatives

What’s the alternative, though? We can’t simply throw an offender onto the street with a lengthy CSO and no supports and expect him not to victimize another person. That’s not only foolish, but immoral and irresponsible.

Instead, I suggest that individual Crown Attorneys, defence counsel, and judges reach out to the remote communities they serve to establish community accountability and rehabilitation measures. What these initiatives would look like would depend on the specific community in question. They could include:

  • Organized drug and alcohol treatment options and supervision
  • Mentoring programs
  • Community involvement through chief and council
  • Sentencing circles
  • Opportunities for the victim and community to represent their interests
  • The provision of housing to facilitate “house arrest” conditions

The focus should be on those measures that can most immediately be implemented without significant funding (since that’s not likely going to be provided any time soon).

Small communities like remote, northern Indigenous reserves are ideal places for CSOs to be served. Everyone knows everyone and there’s plenty of opportunity for community supervision, reporting of misbehavior, and reintegration. It’s just a matter of putting some structures in place that can accomplish these goals.

Securing an Alternative Sentence

If the systems required for a realistic alternative to incarceration exist in a community, it’s incumbent upon justice system participants to ensure that those systems are utilized. This will mean pushing for community-based sentences whenever they are justifiable. It may require the defence to constitutionally challenge provisions prohibiting Conditional Sentence Orders in certain cases.

Final Thoughts

Conditional Sentence Orders have gotten a very bad rap for a very good reason. They’re powerful tools that are only appropriate when their imposition doesn’t get in the way of the fundamental principle of sentencing.

But its possible to create structures in small and remote communities that allow for adequate punishment to occur outside of a reformatory or penitentiary setting. Front-line Crowns and defence should work with Indigenous communities to put these structures in place and then use them. It would be well worth it.

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