On July 24, 2020, the Ontario Court of Appeal struck down two key provisions of the conditional sentence order regime in Canada. In R. v. Sharma, 2020 ONCA 478, a 2-1 judgment invalidated the provisions prohibiting the imposition of a conditional sentence order for:

  • offenses that carry a maximum sentence of 14 years or life imprisonment (742.1(c)), and
  • offenses that involve the import, export, production, or trafficking of drugs and carry a maximum sentence of 10 years or more (742.1(e)(ii)).

The decision itself, as suggested by the two-to-one split, is highly controversial. Wherever your opinions of the judgment itself lie, it’s obvious that both the majority and minority opinions are open to reasonable debate. The judgments raise serious questions of parliamentary supremacy and the proper approach to section 15 of the Charter, among others.

But this article isn’t about those questions. It’s about the inevitable collision between reasonable public opinion and the justice system that is exemplified by decisions like R. v. Sharma.

Punishment for Punishment’s Sake

It’s fair to say that the Canadian public remains relatively punitive. While large scale data collection on the public perception of sentencing in Canada is skeletal, what little research has been done suggests a general perception that criminal sentencing is too lenient. Additionally, the belief that punishment should be carried out for retributive ends, as opposed to utilitarian ones, is widespread.

This isn’t to say that public opinion on criminal sentencing in Canada is uniform. There are plenty of utilitarians who support alternatives to harsh penalties. But, in my experience at least, one is much more likely to encounter members of the public who think, for whatever reason, that “criminals don’t get what they deserve.”

It’s also fair to say that, of all the sentencing options, conditional sentence orders are viewed with particular skepticism by large portions of the Canadian public. While ostensibly a custodial sentence, these sentences are frequently portrayed as ones in which the offender has “gotten off easy.”

The Gradual Restriction of CSOs

It’s no surprise then that Parliament acted over the course of the last 24 years to gradually restrict the availability of conditional sentence orders. While previously available for all sorts of extraordinarily serious offences, including sexual assault, the applicability of CSOs had been severely limited by 2020.

Since 1996, governments of both major parties took steps to remove CSOs from the sentencing toolbox of judges across the country. These steps were taken largely in response to the widespread belief that conditional sentence orders were being used inappropriately by judges in cases that called for incarceration.

CSOs: Same As They Ever Were

During the intervening 24 years between the inception of the CSO and today, the fundamental nature of the sentence has remained the same. At it’s most harsh, it’s a form of house arrest. It is the adult version of a grounding. And, while the conditions that can attach to a CSO might represent a significant limitation of liberty, the sentence bears very little resemblance to incarceration in a provincial jail.

As far as I know, no attempts have ever made to address some of the concerns that the public has with CSOs, which include:

  • A lack of deterrent or denunciatory impact
  • Difficult or impossible enforcement and monitoring, especially in rural areas
  • Inadequate protection of public safety

CSOs remain the same imperfect and flexible sentencing option they were in 1996.

Public Perception vs. Judicial Fiat

What we have here, then, is a situation where a court is requiring judges to consider sentences that have already been judged by the public, through Parliament, as being completely inappropriate. And this wasn’t a public judgment hastily considered and rushed into law. This was widespread, long-lasting public sentiment given legislative life by both major political parties.

A reasonable person could certainly argue that the public’s distrust of CSOs is misguided, even mean-spirited. At the same time, reasonable people could argue that CSOs are themselves a misguided attempt to coddle hardened criminals under the guise of rehabilitation.

The cold truth is, however, that strong public majorities speaking through both major Canadian political parties have for 24 years indicated their discomfort with allowing judges to hand down house arrest for serious or violent offences. And, through the opaque magic of the Charter, the Ontario Court of Appeal has done away with that considered majority opinion.

A Missed Opportunity

I’d suggest that Parliament missed multiple opportunities to put retributive teeth into CSOs to deal with some of the public’s concern about the sentence. Adding options for more punitive community-based conditions and tightening the criteria for avoiding a termination of community supervision may have been preferable to simply limiting the availability of the sentence entirely.

In a lot of ways, this mess is as much Parliament’s fault as it is the Ontario Court of Appeal’s. Had Parliament expanded the options available to sentencing judges and provided more guidance with respect to the imposition of CSOs, rather than just making it harder and harder to qualify for a CSO in the first place, the Ontario Court of Appeal wouldn’t have had the opportunity to decide R. v. Sharma.

Final Thoughts

If the Supreme Court of Canada upholds the decision in R. v. Sharma the courts will once again be required to impose deeply unpopular sentences until Parliament cooks up an imperfect “solution” to the spectre of hard drug traffickers getting house arrest. The entire process will undoubtedly further tarnish the reputation of the justice system in the eyes of a public that has grown accustomed to view the work of that system with contempt and distrust.

Perhaps what is necessary is a public re-examination of what we hope to gain from punishment and sentencing. If the public can provide some clarity and unity on what a sentence should achieve then the courts may be able to reciprocate with decisions that reinforce, rather than tear down, public confidence in the administration of justice.

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