Conditional Sentencing in Cases of Impaired Driving Causing Death or Bodily Harm

The Right Honourable Stephen Harper, P.C., M.P.
Prime Minister of Canada
Ottawa, Ontario

Dear Prime Minister,

The Canada Safety Council is Canada’s national, not-for-profit, knowledge based safety organization. Please visit our Web site.

We understand your government will face pressure to prevent the courts from using conditional sentences in cases of impaired driving causing death or bodily harm.

You are aware that controversy surrounds the use of conditional sentences for serious crimes. Some feel conditional sentences are too lenient and want them eliminated. Others believe a carefully tailored conditional sentence can sometimes provide better public protection than a prison sentence.

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.

Exactly what are conditional sentences, when are they being used, and how could they affect safety? From a safety perspective, does it make sense to eliminate conditional sentences for cases of impaired driving causing death or bodily harm?

To answer these questions, the Canada Safety Council commissioned a study by University of Ottawa researchers Julian Roberts of the Department of Criminology and David Paciocco of the Faculty of Law. Their report, released last February, examined the case law and reviewed research on conditional sentencing. Sentencing in Cases of Impaired Driving Causing Bodily Harm or Impaired Driving Causing Death, With a Particular Emphasis on Conditional Sentencing (57 pages) can be downloaded from the Canada Safety Council’s Web site.

A thorough case review showed that conditional sentences were issued very selectively. They were ordered when there were no aggravating factors such as a poor driving record or high blood alcohol level, and typically to individuals who, given their character or circumstances, were good candidates for restorative justice. Many of the offenders had suffered personal tragedy as a result of their actions. They had injured or lost friends, partners or their own children, and often had the support of the victims’ families.

Canada’s court system requires that judges be given strong discretion. Critics who know only of the offence and the penalty often do not realize there are other important factors to be considered at sentencing.

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 revealed only nine conditional sentences were handed out for impaired driving causing death (out of a total 53 cases), and 84 for impaired driving causing bodily harm (out of a total 339 cases). This shows that courts generally consider a prison sentence, and not custody at home, to be the appropriate sentence in most cases. The conditional sentence has an important but limited role. The study suggests denunciation and general deterrence are the main reasons it is not used more often: prison sentences are seen 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 role in communicating and reinforcing society’s shared set of values. The sentencing rationale requires proportional penalties — and these offences have devastating consequences.

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, as the study points out, there is little evidence that the more severe the punishment, the greater the deterrent effect. Rather, the certainty of penalties is more likely to account for deterrent effects.

In 2003, road crashes involving a driver who had been drinking killed 902 people. Half (450) were drivers who were legally impaired; they obviously cannot re-offend. To the Canada Safety Council, the challenge is to prevent offenders from continuing to drink and drive after their sentence has been completed. To achieve this, the law must allow sanctions to address risk factors which led to the offence in the first place, such as alcohol dependency, relationships and attitude..

The bottom line: for crimes related to impaired driving, removing sentencing options could compromise public safety.

Sincerely,

Emile Therien
President

c.c. Provincial and Territorial Premiers; Honourable Vic Toews, Minister of Justice; Canadian Bar Association; Canadian Association of Chiefs of Police; Canadian Judicial Council; John Howard Society of Canada; St. Leonard’s Society of Canada; Canadian Association of Elizabeth Fry Societies; Church Council on Justice and Corrections ; Canadian Criminal Justice Association; CSC Board of Directors