Yvon Dandurand and Raelyn O’Hara

Five years ago, a Blue-Ribbon Panel on Crime Reduction convened by the Attorney General of British Columbia and chaired by Dr. Darryl Plecas strongly recommended reducing the use of short-term prison sentences and increasing the use of conditional sentences. The Panel suggested the implementation of a province-wide Integrated Offender Management (IOM) program,¹ a program that could significantly reduce crime by bringing together criminal justice agencies, local authorities, health services, and the voluntary sectors to supervise and support offenders serving a community-based sentence. 

In January of this year, the 12^th National Symposium on Reinventing Criminal Justice drew together nearly a hundred justice leaders from across Canada to discuss “Alternatives to Short-Term Custody”. The consensus that emerged from the meeting was that the criminal justice system must urgently find ways to shift away from short-term custody, whether it is through diversion, the expansion of community-based sanctions, the use of electronic monitoring, or by legislating a presumption against short prison sentences.²

Our colleague, Allan Castle, noted that a majority of the sentences ordered by Canadian courts are imposed on repeat offenders and last for an average length of 51 days, a clear indication of the inability of these sentences to deter re-offending.³ The dismal impact of short-term sentences on recidivism is due largely to their inability to actually address the offenders’ criminogenic needs and offer meaningful rehabilitation programs.⁴ Short-term incarceration leaves little opportunity for educational, social, and employment programs to operate effectively. Short-term imprisonment disrupts the offenders’ life, destabilize their social relationships, as well as their living, employment, and family arrangements, but it typically offers nothing that might genuinely help their successful social reintegration after release. These short terms of imprisonment also have an impact on the offender’s family, especially the children. Having a parent in  prison, especially when it is the child’s primary caregiver, can be detrimental to a child’s development and wellbeing. The experience can be both disruptive and traumatic, putting the child at risk for both delinquency and victimization.⁵ The impact of a prison sentence on offenders with parental responsibility ought to be considered at the time of sentencing.⁶

Several countries, across Europe reckoned the social and financial costs of short-term imprisonment, its detrimental effects, and its pointlessness and have tried by various means to minimize its use and develop viable alternatives. The Canadian justice system has not followed suit, at least when it comes to sentencing adult offenders. 

There really is no question that diversion and community-based sanctions, when properly used and administered, can have a significantly greater impact on reducing recidivism than short-term incarceration. Canada has already proven this point through its effective juvenile justice system. In Switzerland, community service orders were found to be more effective in reducing recidivism than short prison terms.⁷ Similar results were found with respect to the impact of community-based sanctions in the Nordic Countries (Finland, Sweden, Denmark, and Norway), as well as in the United Kingdom. Scotland, Ireland, and Sweden have instituted a presumption against short-term prison sentences in their sentencing laws to curtail the use of these sentences (12 months or less in Scotland and Ireland, and 6 months or less in Sweden) resulting in reductions in prison populations with no noticeable increase in crime rates.  

Germany has also adopted a presumption against short-term sentences. As per section 47 and 56 of the German Penal Code, a prison term must not be less than six months, unless the judge deems it absolutely necessary.⁸ Furthermore, Germany also operates on the presumption that a sentence of one year or less should be suspended unless significant circumstances exist, making it necessary to carry out the sentence. As a result, the incarceration rate in Germany dropped from 96 per 100,000 people in 2004 to 78 per 100,000 people in 2019, though some areas of Germany, such as  Schleswig-Holstein, dropped to 41 per 100,000 people.⁹

Canada, however, persisted on a different path. More than 80% of prison sentences ordered by Canadian courts are for six months or less, despite section 728.2(2) of the Criminal Code indicating that “all available sanctions, other than imprisonment, that are reasonable in the circumstances and consistent with the harm done to victims or the community should be considered for all offenders, with particular  attention  to  the  circumstances  of  Aboriginal offenders.” Judging from prison data, that presumption in favour of sanctions other than imprisonment appears to have been completely overlooked by the courts, as they continue to order sentences that are incapable of addressing the criminogenic needs of offenders or facilitate their desistance from crime. The introduction of the so called Gladue reports, a form of pre-sentence report meant to encourage courts to consider alternative to imprisonment for Indigenous offenders,¹⁰ does not seem to have broken pre-existing sentencing patterns. 

The recommendations of the Blue Ribbon Panel about reducing the use of short-term sentences made a lot sense. In fact a counter-argument was never presented, at least publicly. Seeing, five years later, that these recommendations were never implemented, one might ask why so little progress has been made. 

Participants in the National Symposium seem to think that inaction on that front, not only in BC but also in the rest of the country, is due to a lack of public support for community-based alternatives and they called for public education campaigns. Others noticed an active resistance to this kind of reform on the part of law enforcement and criminal justice officials and thought that training may make a difference. It must be time surely to go beyond simplistic explanations, break away from the current policy stagnation, and find out what it would take to transform the justice system’s overreliance on short prison sentences into a more effective crime reduction strategy. 

This fall, the British Columbia Justice Summit will focus on the question of “Diversion and Alternatives to Short-Term Incarceration”, starting it seems from the assumption that short-term incarceration, the most resource intensive sentencing option, is ineffectual as a deterrent or as a tool in rehabilitation. The discussion will take place at a time where the COVID 19 pandemic has forced judges to consider the health risks associated by their previous reliance of short-term sentences, while correctional authorities had to temporarily suspend some community-based correctional programs or learn how to deliver some of them remotely. Are there not some lessons to be learned from the way the justice system has adapted to the circumstances created by the public health crisis? Hopefully, this new context will allow the Justice Summit to help break the province’s inertia and come up with a realistic plan for moving forward with the urgent reforms that are required. 

¹ Plecas, D.,  Bass, G., Bemister, G., Busson, B., Dandurand, Y., & Fournier, J. (2020). Getting serious about crime reduction report of the Blue Ribbon Panel on crime reduction. 

² The Twelfth National Symposium on Re-Inventing Criminal Justice, Final Report, Montreal, January 2020.

³ Castle, A. (2020). Dr. Allan Castle discusses making sense of short-term custody. 

⁴ Apel, R. & Sweeten, G. (2010). The impact of incarceration during the transition to adulthood. Social Problems, 57(3), 448-479. 

⁵ ICCLR, E-Fry of Greater Vancouver, UFV (2018). Enhancing the Protective Environment for Children of Parents in Conflict with the Law or Incarcerated: A Framework for Action.

⁶ Millar, H. & Dandurand, Y. (2018). The best interests of the children and the sentencing of offenders with parental responsibilities. Criminal Law Forum, 29(2), 227-277. 

⁷ Killias, M., Gillieron, G., Villard, F., & Poglia, C. (2010). How damaging is imprisonment in the long-term? A controlled experiment comparing long-term effects of community service and short custodial sentences on re-offending and social integration. Journal of Experimental Criminology, 6(2), 115-130. 

⁸ Heller, K. J., & Dubber, M. D. (Eds.). (2011). The handbook of comparative criminal law. Stanford, CA: Stanford Law Books.

⁹ Subramanian, R., & Shames, A. (2013). Sentencing and prison practices in Germany and the Netherlands. New York: Vera Institute of Justice. 

¹⁰ Barkakas, P. Chin, V., Dandurand, Y., & Tooshkenig, D. (2019). Production and Delivery of Gladue Pre-sentence Reports: A Review of Selected Canadian Programs. Vancouver: ICCLR.

Photo by Joel Muniz on Unsplash.