More on "house arrests": stats and stories

Why does the tough-on-crime legislation stop judges from sentencing house arrests?

When Justice Minister Rob Nicholson unveiled the government’s crime legislation earlier this week, I asked his department for information to support one aspect of the complex bill—the move to stop judges from handing down “house arrest” sentences for a raft of crimes.

The background documents released with the legislation highlighted the need to prevent judges from issuing these conditional sentences—which allow convicted criminals to serve time in the community with restrictions, rather than behind bars—for serious offences such as manslaughter, arson and fraud over $5,000.

I had hoped Justice Canada or Nicholson’s political staff would give me some sort of analysis of sentencing patterns to show why he believes courts are coddling dangerous criminals with this particular form of light punishment. Instead, the department merely passed along data from the Canadian Centre for Justice Statistics, showing how often judges hand down house arrest sentences for certain crimes.

Raw numbers don’t usually qualify as an argument for an important government policy change. But in this case, I take it, the justice minister is suggesting the stark stats alone tell the story. So let’s have a look at a few of them.

For all the crimes listed in data provided, conditional sentences were handed down in a small minority of cases. Out of 26 manslaughter cases resulting in convictions in 2009-10, for instance, just one resulted in a conditional sentence. Out of 4,549 frauds over $5,000, judges decided on 695 conditional sentences, or in 15 per cent of convictions. For arson, it was 16 per cent, or 54 conditional sentences out of 330 convictions.

To me, these figures confirm that judges much more typically send the criminal to prison, which makes sense for such serious offences. I’m inclined to assume judges don’t hand down conditional sentences, in the exceptional circumstances when they do, for no good reason. Still, I can understand the opposite reaction, presumably Nicholson’s: Why should anybody convicted of these crimes ever avoid jail time?

To begin to answer that question, data must give way to messy details. In an earlier post, I touched on that single manslaughter case that resulted in a conditional sentence: two men in Winnipeg, both drunk, argue outside a bar, one shoves the other, he falls, hits his head on the pavement, and later dies. The Crown prosecutor and the defence lawyer agree the guy who did the shoving shouldn’t be locked up, and the judge concurs. The outcome: an exceedingly rare house-arrest sentence for manslaughter.

What about arson? Well, there was a case from a few months back from little Oromocto, N.B., where a 19-year-old man was hanging around drunk by the smoke shack behind the local legion, and stupidly started setting little fires and stamping them out, before one blaze got out of control, burning down the Royal Canadian Legion building.

Lock up the reckless fool? That wasn’t the reaction of the Oromocto legion president. “Who wants to see a young man go to jail?” Pat Parker reportedly said. “Jail does not serve any good purpose for a young person.” The judge agreed in this instance, handing down a conditional sentence came with a mandatory 240 hours of community service at the legion. The arsonist’s mother said he would gladly work longer.

Fraud worth over $5,000 is an interesting offence to include on the list of crimes for which the government seeks to outlaw conditional sentences, in that it isn’t violent. Perhaps the notion of cold, calculating, clever scamming can seem even more clearly worthy of prison. Most of the time, I guess.

But what about the woman in Drayton Valley, Alta., who got off with a conditional sentence after using somebody else’s credit card and messing around dishonestly with cheques at an auto body shop? She reportedly ripped off three people to the tune of $8,427. The judge was strongly inclined to put her in jail, but he relented when the Crown and defence jointly urged a conditional sentence. She was a mother of three, after all, and was paying back the people she had defrauded.

These are just examples I found searching the Internet for local court stories. I don’t doubt that the use of conditional sentences is in many cases open to fair-minded disagreement. I know appeal court judges and legal experts have grappled with questions about when house arrest makes sense and when only incarceration fits the crime. However, none of that debate is reflected upon in material Nicholson has released surrounding his sprawling legislation, and the undigested statistics offered by his department fail to advance the discussion at all.

The aim of the government’s reform package is, if the bill’s title is to be believed, “safe streets and communities.” If judges lost the discretion to consider, on sentencing, the messy details surrounding an drunken argument outside a bar, or a young mother’s dishonesty with other people’s money, or a young man’s stupid playing with fire, I don’t see how that will make anyone any safer. The case for this dubious reform hasn’t nearly been made.