National Post

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Wednesday, May 26, 1999

Law lets convicts serve time in style, Supreme Court told
Conditional sentencing: Provinces argue home sentences should not apply to crimes of violence

Tim Naumetz
Southam News

< p>OTTAWA - Thousands of people convicted of crimes ranging from manslaughter to rape and robbery are able to live the life of Riley, serving their sentences at home under a new federal law, the Supreme Court of Canada was told yesterday.

Lawyers for the governments of Manitoba and Ontario suggested the conditional sentencing law -- intended to give judges leeway to avoid handing out prison terms in certain cases -- may be eroding the standards of justice in Canada.

Arguing on the basis of statistics gathered by the Ontario and federal governments, the lawyers painted a picture suggesting trial judges may be interpreting the 1996 law too leniently.

The law allows judges to hand down sentences with no jail time, but with conditions attached such as community service and house arrest, to people convicted of crimes that have no minimum sentence and for which the judge would otherwise give a sentence of less than two years in jail.

Statistics presented to the court by Ron Fainstein, a federal government lawyer, showed 28,300 conditional sentences were handed down between Sept. 3, 1996, when the law introduced by Allan Rock, the former justice minister, took effect, and last Sept. 30.

But only 3% of those conditional sentences contained house arrest, where the convicted person could not leave his or her home. Another 10% had a curfew, where they had to return to their homes at a certain time, while a further 10% were sentenced to some form of community service, Mr. Fainstein said.

Most of those sentenced to time at home have unlimited freedom, unlike the severe restrictions of jail, argued Kenneth Campbell, an Ontario government lawyer.

"They get to do basically anything they want to do," Mr. Campbell told the nine Supreme Court justices.

"They can watch TV, they can listen to music, they can visit their friends or they can go to restaurants," he added, saying Parliament intended conditional sentencing to be more restrictive.

Matthew Britton, a lawyer for the government of Manitoba, says judges may be under the false impression that they can no longer imprison people who have been convicted of less-serious proper crimes if the circumstances allow conditional sentencing.

"No offender is automatically entitled to a conditional sentence," Mr. Britton said as the Supreme Court justices probed him for his view on the law.

The federal figures indicated conditional sentencing is still a minor part of the justice system, comprising only 8% of all sentences, including those with jail time, probation, or fines.

Mr. Campbell, however, questioned whether conditional sentences were appropriate for some of the crimes.

The federal statistics show, for instance, that 15 people in the two-year period of Ottawa's study were given conditional sentences for manslaughter. Another 6,414 received conditional sentences for crimes against the person, such as assault and sexual and family violence. A further 9,494 received conditional sentences for property crimes, such as theft and break and enter. Another 2,493 had committed fraud, while 1,192 committed sexual crimes.

The Ontario government argues conditional sentencing should not be available in serious crimes of violence, such as manslaughter and aggravated assault, sexual aggression, sex offences against children, drug trafficking, impaired driving causing death, or injury, serious fraud and theft, serious morality offences, such as possession of child pornography, and for repeat offenders.

As a means of possibly setting guidelines for conditional sentencing, the Supreme Court is hearing appeals of six cases in Manitoba, British Columbia, Alberta, and Newfoundland.

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