By arthur Weinreb
Monday, October 30, 2006
The principle of conditional sentencing was first introduced into Canadian law 10 years ago. Its purpose was to allow certain offenders who would otherwise be incarcerated to serve their sentence in the community in a form of house arrest. The only "offence related" restriction that was placed upon conditional sentencing was that such a sentence could not be imposed where the offence called for a minimum term of imprisonment. In all other offences, a judge could impose a sentence to be served in the community as long as it was determined that a custodial sentence of less than two years was appropriate.
as a result of these minimal requirements, persons who were found guilty of such offences as sexual assault or dangerous driving causing bodily harm or death were eligible to serve their sentences in the community. and whenever such sentences were imposed, the public became outraged. The Conservatives vowed to make legislative changes that would prohibit these types of offenders from avoiding jail and being allowed to serve their sentences in the community under their overall platform of being tough on crime.
Bill C-9, an act to amend the Criminal Code (Conditional Sentences of Imprisonment) was introduced by the government earlier this year and passed second reading on June 6. Under this bill, those who commit "serious offences" will be ineligible to receive conditional sentences any under circumstances.
While the notion that those who commit serious offences will be prohibited from avoiding incarceration sounds good, the government chose to define the term "serious offence" by use of the maximum penalties that are set out in the Criminal Code. Many of these maximums bear no relation to what most people would regard as serious and are a holdover from another era when property offences were considered to be more serious and even worse than some crimes of violence that are now prevalent in society. Under Bill C-9, conditional sentences cannot be imposed on anyone who is convicted of an offence for which the maximum punishment is 10 years or more.
This bill is being vigorously opposed by the opposition parties and it is one of the pieces of legislation that they want to "gut". Their criticisms of the proposed legislation are not without merit.
For example, under the Criminal Code, the maximum punishment for breaking and entering into a dwelling is life imprisonment while the maximum penalty for sexual assault with a weapon is 14 years. Break and enter into a dwelling, even if it is unoccupied at the time is a serious crime. Many people are traumatized by the fact that a stranger has invaded their private space and that damage can often be more severe than taking a punch in the face. But very few people would argue that having their home broken into is more serious than having a knife held to their throat while they are being sexually assaulted. Yet the Criminal Code of Canada makes the B&E a more serious offence than the latter.
Examples of offences where offenders would no longer be eligible to serve their sentences in the community are, theft over $5,000, possession of housebreaking instruments, forgery, uttering a forged document and obtaining credit by false pretences, all of which carry a maximum term of imprisonment of 10 years. If car thieves and those who pass forged documents are going to be automatically excluded from receiving a conditional sentence it would make more sense to simply abolish the provision completely.
But from a political point of view, the bill was sheer brilliance. During the last election, all parties, including Taliban Jack's NDP, ran on get-tough-on crime platforms. We all remember Paul Martin running to the Jane and Finch area of Toronto in the wake of the murder Toronto teen Jane Creba and promising to introduce the tough measures on handguns that are already in place. The Conservatives would naturally prefer to run on the issue of crime in the next election rather than on Kyoto or daycare. The result of this overbroad bill is to paint the opposition as the soft-on-crime adherents that they really are.
The Tories set a trap and the opposition dived right in.
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