Why not trust judges on “house arrest” sentences?

Back in the fall of 2007, two very drunk men, who had previously been romantically involved, were arguing outside a Winnipeg bar. One shoved the other, who fell and hit his head on the pavement. Lyle Walker, 35, was reportedly able to stand up, but died a few days later from the injury. When the man who had pushed him went to trial, his lawyer and the Crown prosecutor agreed he shouldn’t go to prison. The judge accepted their joint recommendation, and Jeffrey James Bear, then 33, pleaded guilty to manslaughter and received a 15-month conditional sentence.

That meant he would be allowed to serve his time, with restrictions, out in the community instead of behind bars.  It was an extremely unusual case—the vast majority of “house arrest” sentences are handed out for much more minor offences. Still, in tabling their sprawling Safe Streets and Communities Act today, the Conservative government highlighted the supposed need to outlaw conditional sentences for crimes that carry a maximum sentence of 14 years to life, including manslaughter, aggravated assault and arson, and crimes that carry maximum of 10 years, when that crime involves bodily harm, drug dealing or the use of weapons.

That probably sounds about right to most people: serious time for serious crime. But, then, most people, reading the word “manslaughter,” won’t be conjuring up the sordid facts of a drunken squabble that turns tragic. A judge, however, must consider such wretched details. That’s why we have them. Or are you among those who suspect they are generally too prone to leniency? Hey, sometimes it happens. In 2008, for example, a lower court judge in Ottawa gave conditional sentences to a father and son who tried to burn down their tanning salon for the insurance money. But the Ontario Court of Appeal overturned that sentence, ruling that the “grave and reprehensible” crime of arson demands incarceration. And that’s why we have appeal court judges.

There is no data that I’ve seen exposing a pattern of soft sentences, conditional or otherwise, handed down by Canadian judges for heinous crimes. For the odd case of coddling, there are always appeals. I have in the past, and again today, asked the Justice Department to provide details on sentencing patterns that would back up the Conservative government’s insistence on limiting the discretion of judges. I’m interested particularly in the facts that convince them judges must be stopped from sentencing dangerous criminals to mere house arrest. So far, nothing. Rest assured, though, I’ll post on it when Justice Minister Rob Nicholson’s department passes along something substantial.

When the government has raised specific points in this area, I’ve tried to follow up on them. Notably, Stockwell Day has claimed (both when he was in government and again yesterday on CBC’s Power & Politics as a Conservative commentator) that thugs convicted in violent home invasions often get off with house arrest. But his office was unable to support his claim when he was a cabinet minister, and he hasn’t yet gotten back to me after I emailed him today.

Here’s what I have discovered (and posted on before) about home invasions: mounting outrage over this frightening sort of crime in the late 1990s led to stiffer sentences, and to the Liberal government of the day amending the Criminal Code in 2002 to make home invasion an aggravating factor that judges must take into account when hand down sentences for related crimes like robbery. In 2006, an Ontario appeal decision surveyed the cases law and found that the “gamut of sentencing dispositions” in home invasion convictions ranged from “as low as four or five years, to as high as eleven to thirteen years.”

And that means in a violent home invasion conviction, house arrest  has not even been in the realm of possibility. Under a 1996 federal law, judges can only use conditional sentencing as an alternative to a prison sentence of less than two years. If the appropriate prison sentence for the crime would be longer—as it would certainly be in a violent home invasion—then a conditional sentence  would not be allowed even if a judge, for some strange reason, was so inclined.  This is equally true for any serious crimes for which the usual prison sentence would be longer than two years.

In other words, the new restrictions on the use of house arrest aren’t going to make much a difference in the way courts typically deal with really frightening crimes. Serious jail time for these offences is already standard, except in outlier cases like that Winnipeg manslaughter. So the big change, according to defence lawyers I spoke with today, will come in the way judges deal with the less shocking offences for which the Tories will also forbid them from opting to hand down conditional sentences. These include fraud over $5,000, and a raft of offences involving selling, importing or producing drugs.

I have no details on how judges currently tend to exercise their discretion to impose conditional sentences for these somewhat more mundane crimes. The less alarming the crime and less hardened the criminal, I would guess, the more often they decide house arrest makes sense. If there is evidence that judges don’t use the power judiciously, the government hasn’t yet bothered to provide it.



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