Conditional sentences: recent changes in the Criminal Code

First introduced in 1996, conditional sentences, which are similar to parole or “house arrest,” allow people convicted of a crime to serve their time outside of the prison system. Since then, the concept has undergone several refinements. The latest changes led to the approval of Bill C-5: An Act to amend the Criminal Code and the Controlled Drug and Substances Act in June of 2022.

What changes to the Criminal Code are we referring to, what exactly do the modifications relate to, and how do they now apply to conditional sentences? Let’s break it down.

History of the conditional sentence in Canada

For more than 10 years, there has been a debate around the concept of conditional sentencing. This began in 2012, when the federal government restricted the conditions under which a court could grant a conditional sentence, based on the seriousness of the allegations.

In 2020, the Court of Appeal for Ontario ruled that the 2012 law was unconstitutional. More precisely, it prohibited judges from imposing conditional sentences in the case of certain offenses carrying maximum penalties of more than 10 years in prison.

In an unexpected twist, in 2022, Bill C-5: An Act to amend the Criminal Code and the Controlled Drug and Substances Act revisited the restrictions related to conditional sentencing. Finally adopted by the House of Commons on June 15, 2022, the measure received royal assent on November 17, 2022.

To what do we owe this latest reversal? To the case of Cheyenne Sharma, an indigenous woman accused of importing 1.97 kilos of cocaine into Canada.

The Sharma case behind the more relaxed requirements for conditional sentencing

In 2015, Cheyenne Sharma pleaded guilty and petitioned for a conditional sentence; however, the court denied the motion. Organizations working to defend the rights of indigenous communities protested that decision, arguing that the criteria for accessing conditional sentences were overly discriminatory against the indigenous population.

After a five-year judicial saga, the Court of Appeal withdrew Ms. Sharma’s prison sentence; however, this ruling was subsequently overturned. Nevertheless, it led to a revision of the requirements for conditional sentencing and an increase in the number of admissible offenses, especially with regard to drug trafficking.

As a result, the official text envisages the following conditions:

“742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offender’s behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if

• a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2;
• b) the offence is not an offence punishable by a minimum term of imprisonment;
• c) the offence is not an offence under any of the following provisions:
  • (i)section 239, for which a sentence is imposed under paragraph 239(1)(b) (attempt to commit murder),
  • (ii)section 269.1 (torture), or
  • (iii)section 318 (advocating genocide); and
• d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more.”

In light of this change in legislation, even those accused of sex-related offenses can now plead for a conditional sentence.

Can you get a conditional sentence?

As you’re undoubtedly aware, the field of law is complex and demands in-depth knowledge of legal terminology in order to fully understand one’s rights. To ensure that you receive fair counsel, you can count on the law offices of criminal attorney Martine Thibodeau, who will be happy to explain your situation to you in lay terms.

 

Sources:
Wikipedia. Conditional sentence (Canada). 2023.
Radio-Canada. Ban on conditional sentences ruled constitutional by Supreme Court. 2022.