Community-Based Sentencing: The Perspectives of Crime Victims

4. Conditional Sentence and Victim Interests: Recent Caselaw

Reported caselaw since R. v . Proulx ([2000] 1 S.C.R. 61) was reviewed with particular attention to judicial discussion of victim interests, interpretation of the restorative principles of sentencing in providing acknowledgement and reparation to victims and the community for the harm caused by crime and conditions in conditional sentences that may address the concerns and interests of victims.

R. v. R.A.R. ((2000) 140 C.C.C.(3d) 523) was a companion case to the landmark case of R. v. Proulx discussed above. It involved an offender who was convicted of sexual assault and two counts of assault against a young woman who worked on his farm. The trial judge sentenced the accused to one year in prison with $12,000 in fines. The Manitoba Court of Appeal imposed a nine-month conditional sentence with conditions of house arrest, community service and rehabilitative programs. The court was influenced by the fact that the accused had subsequent to his conviction paid $10,000 to the complainant pursuant to a settlement of a human rights complaint.

In a divided decision, the Supreme Court would have restored the sentence of imprisonment given the emphasis placed on denunciation and deterrence of sexual assault. Justice L'Heureux-Dube stated the following for the majority:

"Although the Court of Appeal made no finding that the respondent showed voluntary signs of remorse or acknowledged responsibility for his acts, it did note that since the imposition of the original sentence, he had made a payment of $10,000 to the complainant pursuant to a settlement of the complainant's proceedings before the Manitoba Human Rights Commission relating to the same incidents. This weighed in favour of restorative objectives and therefore of a conditional sentence…In my view, however, this factor was not so important as to outweigh the need for a one-year sentence of incarceration in order to provide sufficient denunciation and deterrence, as found by the trial judge" (at para 30).

Although this case reveals judicial reservations about the ability of conditional sentences to fulfill the penal goals of deterrence and denunciation, it also recognizes that reparation and perhaps other victim oriented actions and conditions could fulfill the restorative objectives of sentencing in ss.718(e) and (f). These provisions added to the Criminal Code in 1996 direct judges to impose just sanctions that "provide reparations for harm done to victims" and "to promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and the community." R.A.R. also suggests that the restorative and reparative objectives of sentencing should not necessarily be restricted to restitution of easily calculable pecuniary damages.

In R. v. Bratzer ((2001) 160 C.C.C. (3d) 272), the Nova Scotia Court of Appeal rejected an appeal of a conditional sentence for armed robbery at three gas stations. The accused had been willing to meet with the victims but "as might be expected, the victims did not want to participate. Mr. Bratzer wrote and provided to the court an lengthy letter of apology to each of the three victims." (para 31). The Court of Appeal considered the victim impact statement, but relied on the caution in R v. Sweeney about their use. The conditional sentence of two years less a day was described as based on "strict conditions" including house arrest, but did not relate specifically to the interests of the victims.

This case suggests that in some cases, victims will not be interested in meeting the offender even if the offender is willing to apologize and attempt to make amends for the offence. The case demonstrates judicial respect for the wishes of the victim and may suggest that some victims of serious crimes may not be interested in attending restorative meetings with offenders. At the same time, it is not known whether adequate resources were expended in this case or exist in general to lay the groundwork for potentially restorative meetings between victims and offenders. It is increasingly recognized that restorative justice does not just spontaneously happen and that resource-intensive groundwork is necessary to prepare offenders, victims and the community before they can engage in potentially restorative meetings.

As discussed above, some of the most difficult issues with community sanctions arise when they are used in cases of serious violence. Because only a subset of conditional sentence judgments are reported and or appealed, serious cases are likely over-represented in the reported jurisprudence concerning conditional sentences. Nevertheless, this provides a good vehicle for discussing some of the most difficult issues concerning community sanctions and their effects on victims.

Conditional sentences have been considered in a number of cases involving sexual violence. In R. v. C.R. P. ((2001) O.J. No. 1595), a 15-month conditional sentence was ordered with respect to an Aboriginal offender who had sexually assaulted his niece on four occasions when she was between 8 and 14 years of age. The victim impact statement indicated that the victim was "affected by shame, guilt and anger". The trial judge stated:

"Reparation to the victim and promoting responsibility on the part of the accused would be assisted by an apology and admission of wrong doing by C.R.P., even if ordered by the court. The accused shall, with the assistance of his conditional sentence supervisor, write a letter of apology to J.W. admitting his wrong, and apologizing for the harm done to her. The letter may be sent to the Crown Attorney's Office at Sault Ste Marie, who shall pass it along to J.W." (at para 15).

Other conditions included participation in rehabilitation programs for child abusers, 100 hours of community service, house arrest and non-association with the victim or any unsupervised child less than 14 years of age. This case raises the question of whether a letter of apology would serve a meaningful purpose in acknowledging harm done to the victim. It also raises the issue of whether a court ordered letter of apology would represent a genuine and sincere gesture of remorse. More study is required about how victims of crime perceive apologies for crime.

In R. v. Longboat ((2003) O.J. No. 598), two Aboriginal offenders who had sexually assaulted a sleeping woman were both sentenced to conditional sentences of two years less a day. A victim impact statement had indicated that "the victim is very unhappy, scared to go out. She has headaches. She speaks about feeling unsafe and the negative effect this has had on her relationship and her life." (para 6). The judge expressed concern that some statements made by the offenders' families indicated that: "they have not recognized the guilt of the accuseds or accepted that guilt, they do not have empathy for the victim. The victim must be recognized. Here a sleeping woman is assaulted sexually by not one, but two men acting together, an abhorrent act, which cannot be forgotten. An act that will obviously have long-term serious effects on her life as borne out by the sad tone of the witness statement." (para 14). The judge imposed a condition that the offender was not to be within 50 metres of the victim including her home, school, or place of work. This order applied for the duration of the conditional sentence and for two additional years of probation. Another condition required each of the offenders to pay $1,000 within a year to an Aboriginal woman's shelter on the Six Nations Reserve. (para 71).

This case is an example of the common use of no contact conditions as a means of recognizing victim interests. As suggested above, the effectiveness of such conditions in responding to fears and anxieties that victims may have needs to be studied. This case also involves the payment of money as a means of making amends. Unlike in R. A.R., the payment was not made directly to the victim but rather to an organization that provides services to other victims of male violence.

A number of reported conditional sentence cases involved spousal violence. In R. v. M.S.R. ((2002) B.C.J. No. 845), the British Columbia Court of Appeal set aside a sentence of three years imprisonment for aggravated assault by an Aboriginal man against his estranged wife. It imposed a 21 month conditional sentence followed by 2 years of probation with optional conditions of abstaining from alcohol, attending anger-management, engaging in cultural ceremonies, assisting the community in a family violence forum, performing 240 hours of community service and observing a curfew.

Prowse J.A. stressed new evidence that the accused had overcome his alcohol problem and that the community expressed a willingness to assist in the community sentence. She added: "I also place weight on the fact that the victim of this offence has stated that she no longer feels threatened by his presence in the community. These are matters which were unknown to the sentencing judge." (para 29). At sentencing, the offender had apparently blamed the victim for his actions that included a stabbing (para 27). M.S.R. demonstrates a concern about the views of both the community and the victim in deciding whether a community sentence is appropriate in cases of spousal violence. It also raises the issue of whether a victim would feel comfortable objecting to a community sanction that was supported by the community.

In R. v. MacDonald ((2003) 173 C.C.C. (3d) 235), the Nova Scotia Court of Appeal overturned a conditional sentence of 2 years less a day with alcoholism treatment condition for aggravated assault against a spouse. The victim had requested leniency and a non-custodial sentence for the offender, noting that she intended to continue to live with him. The Court of Appeal imposed a sentence of 22 months imprisonment followed by three years' probation. It stressed the need for denunciation and deterrence, but also expressed concerns about the safety of the victim. Bateman J.A. stated: "It is counter-intuitive to permit a violent offender to continue to cohabit with the victim, even though the victim is a willing participant. That would surely undermine confidence in the administration of justice." (para 41). The Court of Appeal also concluded that the offender's "expression of remorse rings hollow in the case of this second assault upon the same victim." (para 50). This case shows an unwillingness to follow the wishes of the victim in a spousal violence case, but also a concern about the victim's safety.

In R. v. Nensi ((2001) O.J. No. 5655 (Ont. Ct. J.), a conditional sentence was rejected in a case of spousal assault, assault causing bodily harm, threatening death and assault with a weapon. The judge held that: "a community sentence would endanger the safety of the victim and potential other partners and thereby the safety of the community." (para 45). The six months imprisonment would be followed by two years of probation with victim-related conditions of no contact with the complainant (who had divorced the accused) or her family, as well as counselling. In a case of criminal harassment of a former spouse, another judge found that a conditional sentence was not appropriate given the continued danger to the spouse. He also noted that such a sentence would fail to serve the penal purposes of s.718(f) of promoting a sense of responsibility in the offender or acknowledging the harm that was done to the victim and the community. The sentence imposed was a five-month term of imprisonment followed by three years probation with a non-contact order unless it involved communication on the phone about the children of the marriage and a $200 contribution to a Transition House (R. v. Simms ((2002) N.J. No.3 (Prov. Ct.)). Once again, the reparation was directed not towards the actual victim, but towards an organization that provided services to similar victims. It was also a more nominal sum than the $10, 000 that was paid to the victim in R.A.R. or the $1000 that was ordered paid to the woman's shelter in Longboat.

These cases of spousal violence demonstrate rejection of conditional sentences in cases of spousal violence and the use of no-contact conditions in subsequent periods of probation as a means of recognizing the interests of the victim at sentencing. The last case also demonstrates the use of nominal contributions to organizations that provide services for victims as a means of advancing the restorative and reparative purposes of sentencing.

Conditional sentences are also considered in reported cases concerning dangerous and/or impaired driving causing death and/or bodily harm. In R. v. Duchominsky ((2003) 171 C.C.C. (3d) 526), the Manitoba Court of Appeal substituted a conditional sentence, with no victim specific conditions, for a sentence of 2 years less a day imprisonment on two counts of dangerous driving causing death and three of dangerous driving causing bodily harm. In another recent case, an Alberta provincial court judge ordered a two-year less a day conditional sentence for a teacher convicted of dangerous driving causing death. There was evidence of considerable remorse on behalf of the offender and the trial judge devised extensive and creative conditions. None, however, related to the interests of the victims' family. The trial judge did, however, preface his extensive reasons for sentence by stating that no sentence:

"can adequately reflect the loss of Kristen's life, or your own loss from her death. It may seem to you that what I will say may be vastly disproportionate to the tragedy of her death. That does not in my mind diminish what I have heard said about Kristen or the impact of her death. I cannot begin to imagine the extent of your sorrow nor the devastation resulting from her needless death. Any attempt to relate the sentence I am about to impose to that loss, risks insulting your loss. There is and can be no meaningful relationship - whatever sentence anyone might impose." (R. v. Iftody ((2003) A.J. No. 100 (Prov. Ct.), para 2).

These cases suggest that at times judges conclude that conditions cannot offer a meaningful form of acknowledgment or reparation to families for the death of victims.

In R. v. Sandreswaren ((2001) O.J. No.3933), a conditional sentence was held to be inappropriate in a case of a drunken driver convicted of criminal negligence causing death. The judge ordered a sentence of two years imprisonment in part to allow the offender to participate in community programs warning of the dangers of drinking and driving. The judge, Cole J., regarded a 240-hour term of community sentence as a fair equivalent to an additional year of imprisonment:

"From all that I know about the accused, I am entirely prepared to accept that he truly wishes to make amends for the inestimable wrong he has caused. It seems to me that the current state of the dialogue around restorative justice in Canada -- at least when we talk about adult offenders -- places substantial emphasis on the offender's duty or obligation to provide reparations to the community" (para 63).

This case shows judicial willingness to craft probation conditions that advance the interest of acknowledging harm to the community, as opposed to the individual victim. As in the above cases, the focus on acknowledgement of harm to the community (as opposed to the victim) seems to be based on an implicit recognition that conditions cannot adequately recognize or repair the harm to families who have lost loved ones as a result of crime. It may also recognize a perhaps accurate perception that the family of the victim might not want contact with the offender.

Although many reported decisions on conditional sentencing relate to offences involving violence or serious harms, some relate to property crimes. In R. v. MacAdam ((2003) 171 C.C.C. (3d) 449), the Prince Edward Island Court of Appeal entered a conditional sentence in a fraud case with no conditions of reparation. It overturned a sentence of imprisonment and a probation order that required the offender to make restitution to the victims (who had been sold used cars with rolled back odometers). The majority of the Court of Appeal emphasized problems relating to the quantification of the damages to the victim and the danger that the offender could be charged with breach of probation if he could not make restitution.

A dissenting judge in MacAdam would have deferred to the trial judge who had emphasized the accused's lack of remorse and his failure to indicate that he did not have the means to make restitution to the victims. The concern about an offender being found in breach of a community sanction such as a conditional sentence or probation because they are financially unable to make reparation is a legitimate concern, but one that could be addressed by variation of conditions or by recognizing that a lack of necessary funds may be a reasonable excuse for failure to comply with reparative conditions (Manson, 2001).

In R v. Watkinson ((2001) 153 C.C.C. (3d) 561), the Alberta Court of Appeal also overturned a sentence of imprisonment in a fraud case and entered a conditional sentence. It indicated that the restorative objectives of sentencing could be satisfied by conditions requiring community service and addiction counselling. In both of these fraud cases, conditional sentences did not provide reparation to the victims of the fraud. We will address reforms that may encourage judges to order reparation for victims more often in a subsequent part of this report.

4.1 Summary

Reported cases since R. v. Proulx demonstrate a range of approaches to victim interests and conditional sentences. Starting with dicta from the Supreme Court of Canada in R.A.R., there is some willingness to recognize that money paid to victims or organizations that provide services for victims may serve reparative purposes. At the same time, the reported cases involving property crimes do not demonstrate conditional sentences being used to achieve financial reparation. There are concerns that conditional sentences are not designed in a manner to encourage the compensation of crime victims. (Roach, 1999b) Some of the cases show a willingness to encourage attempts at non-financial acknowledgment of harm through conditions such as letters of apology, but others demonstrate respect for the decisions of victims that they do not want to meet with offenders.

In cases of spousal violence, appellate courts have taken different approaches, with some accepting conditional sentences in part because victims have not opposed them, while others have concluded that concerns about the safety of the victim should prevail over the wishes of the victim that the offender should serve his sentence in the community. In cases where victims have suffered the loss of loved ones, judges tend to focus on reparation and acknowledgment of harm to the community on the assumption that conditions are not up to the task of serving these purposes in relation to the victims.