SENTENCING OPTION GREW FROM OVERCROWDED JAILS

Canada's overcrowded jails forced the need for house arrest, says a federal
bureaucrat who helped devise the controversial sentencing scheme.

"We realized we had a problem with very huge and unprecedented growth in
our prison populations, both at the provincial and the federal level," says
David Daubney, the co-ordinator of Canada's sentencing reform team.

In the early 1990s, Canada's prison growth rate was about double its
traditional level since the Second World War, he says.

"We had, by most measures, one of the highest incarceration rates in the
western world - fourth after the U.S., Russia and South Africa - at about
133 people for every 100,000 in the population," he says.

Keeping in mind that the cost of housing someone in a provincial jail is
about $92 per day ($33,580 annually), the federal government was trying to
limit the numbers.

The committee also tried to use the new sentencing tool to meet another
challenge - creating an alternative to probation and jail.

"We needed something . . . that would provide for more flexibility and
allow for a sentence to be served in the community," says Mr. Daubney, a
lawyer with the criminal law policy branch in Ottawa.

But unlike probation orders, which are sometimes hard to enforce, the
committee decided to put in a catch - that the house arrest term could be
taken away if offenders failed to live up to the conditions of their sentence.

Some of those conditions include submitting to random drug testing,
attending counselling and abstaining from driving a car or drinking alcohol.

Offenders who violate just one condition can be brought back to court to
explain why.

"It can be converted in an effective and almost automatic way into an
actual jail sentence for the balance of the term," Mr. Daubney says.

House arrest can be considered the punishment for any crime when the
sentence handed down is less than two years.

According to the Criminal Code of Canada, the only rule is that the court
must be satisfied that the offender serving the sentence "would not
endanger the safety of the community."

The sentence can't be given when the crime is punishable by a minimum
penalty - offences involving firearms (like robbery) and first- and
second-degree murder are not eligible.

Finally, the sentence has to be consistent with the purpose and principles
of sentencing, a sort of a codified checklist that judges review to ensure
the punishment fits the crime.

Statistics from the provincial Justice Department show that offences
punished by conditional sentence vary in this province, from breaching a
court order to manslaughter.

A breakdown of the 2,852 conditional sentences given out since they were
introduced in September 1996 shows that 29 per cent were for
property-related offences (shoplifting, theft, break and enter), 26 per
cent for assaults (minor and major) and 16 per cent for drug offences.

In some cases, judges have given a conditional sentence for sexual assault
and aggravated assault.

Those decisions don't always sit well with the public - or government.

When the topic was covered at a recent meeting of provincial justice
ministers in Calgary, Nova Scotia's Michael Baker was quick to raise
concerns about using a conditional sentence as a punishment for sexual
assault and vehicular homicide.

Reform MPs have demanded an amendment to the Criminal Code to ensure that
no one convicted of crimes involving violence, death or serious injury is
eligible for a conditional sentence.

The federal Liberal government has started a review to determine whether
more limits should be placed on conditional sentencing.

Despite concern about its appropriateness in some cases, house arrest is
achieving its main goal, Mr. Daubney says.

"Generally, in terms of whether it is reducing prison populations, the
answer seems to be that it is," he says.

"In fact, figures indicate that the number of people who otherwise would
have gone to jail in the past five years is 55,000. That's a 13 per cent
decline in the admittance to custody, and that's fairly significant."

But the Justice Department is still reviewing the regime's success.

"We're in a monitoring and evaluation phase and have been for the past six
years," he says.

As well, the department will soon hold hearings across Canada to seek
public input, and the Canadian Centre for Justice Statistics will release a
report at the end of the year.