An examination of the average length of prison sentence for adult men in Canada: 1994 to 2002, R Boe, L Motiuk, M Nafekh

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Content: ________ Research Report __________ An Examination of the Average Length of Prison Sentence for Adult Men in Canada: 1994 to 2002 Ce rapport est йgalement disponible en franзais. This report is also available in French. Pour obtenir des exemplaires supplйmentaires, veuillez vous adresser а la Direction de la recherche, Service correctionnel du Canada, 340, avenue Laurier ouest, Ottawa (Ontario) K1A 0P9. Should additional copies be required, they can be obtained from the Research Branch, Correctional Service of Canada, 340 Laurier Ave., West, Ottawa, Ontario, K1A 0P9. 2004 N° R - 136
An Examination of the Average Length of Prison Sentence for Adult Men in Canada: 1994 to 2002 Roger Boe Larry Motiuk and Mark Nafekh Research Branch Correctional Service of Canada March 2004
EXECUTIVE SUMMARY An earlier report (Boe et al, 2003), had found that the proportion of men admitted between 1996/97 and 2001/02 with a sentence "under three years" had increased from 34% to 46% of total federal new admissions. Meanwhile, the proportion admitted with intermediate and longer sentences (e.g., those with fixed sentences from 3 to ten years or more) decreased by a corresponding amount and the proportion admitted with a life or indeterminate sentence remained unchanged. The fact that the proportion of new court committals with shorter sentence has increased significantly over this five-year period, suggests that average length of court sentence for federal men may be decreasing. One goal of this report is to find out whether this is true, and the other is to see whether this reflects a general trend for prison sentences for adult men in Canada. In order to establish measures of the length of sentences, we examined the information from the Canadian Centre for Justice Statistics (CCJS) annual Adult Criminal Court Survey (ACCS), for fiscal years from 1994/95 through 2001/02. Only 8 provincial/territorial jurisdictions have completed the survey for all of the years since 1994/95. We therefore examined the data for these 8 jurisdictions, and this information was used to calculate trends in the annual average (i.e., median and mean) length of sentences, as well as aggregate sentences in standard groupings up to 2-years and over. The sentencing analysis was limited to adult men as the population of women convicted and sentenced in some jurisdictions each year is too small to allow reliable sentence length calculations when the data is disaggregated by common offence categories. By way of background, Canada's laws, especially concerning crimes against the person such as assaults and sexual assaults, underwent significant revisions beginning in the early 1980s. Changes to the assault and sexual assault laws in particular were immediately felt, as evidenced by the very rapid increases in incidents of those categories of violent crime reported by police thereafter. These very rapid increases persisted throughout the 1980s, before they finally began to diminish and even reverse direction in the early 1990s. Adult prison populations in Canada reflected these crime trends, also increased rapidly until finally reaching a peak around 1995. Adult correctional populations in Canada have been declining since then. Since 1994, when the ACCS survey was initiated, the overall number of cases of adult men brought to trial in P/T adult criminal courts has declined 14%. During this period the proportion of cases found guilty each year has remained virtually unchanged at roughly 63%, so the number of men found guilty has also decreased by roughly 14%. The number of cases of adult men who were actually sentenced to prison during 2001/02 decreased by nearly 18,000 cases as compared to 1994/95. The data indicate that a very slight increase in the proportion (up from 34% to 35%) of convicted cases in 2001/02 that i
received a prison sentence than in 1994/95, but since overall cases had decreased, so too have the absolute number of prison sentences. Amongst those adult men receiving a prison sentence, the number of cases that received sentences less than 2 years decreased whereas the number that received a federal sentence (two years and over) actually increased. For example, between 1994/95 and 20001/02 the proportion of sentenced cases that received prison terms of "2 years and more" increased from 3.0% to 3.9%" (nearly a 30% increase), while in absolute terms this category increased by 221 cases. When we examined the average sentence length of male federal offenders admitted to federal corrections over this period, we found that the "mean" length of sentence has been decreasing. The mean length of sentences for each of the 8 most common federal offences has trended downward since 1994. The sentence-length for Murder-1 and murder-2 cases (as measured by time to first parole eligibility) has remained essentially unchanged over the period since 1994. Thus we found that the mean length of sentence for adult men in Canada has increased since 1994/95, primarily because of an increase in the proportion of men sentenced to 2years and more. However, amongst federally sentenced offenders the mean sentence length at admission has actually decreased. Because of the workings of the "two year" rule, fewer Canadian adult men were sent to prison but more were sentenced to federal prison terms (albeit, with shorter average sentences). We also examined several factors that might possibly shed light on these peculiar sentencing patterns. We noted how the elapsed time for adult criminal court trials has been increasing, as has the size of the custodial remand populations, even as the overall sentenced population counts have declined. One reason that prison sentences may be becoming shorter is so as to reflect the longer time that convicted offenders have spent in custodial remand before their cases are completed. Various media reports have also speculated that judges are starting to discount sentences at rates much higher that was typical in the past. This discounting would appear to be a reaction both to the longer average time that offenders are spending under custodial remand, as well as the poor conditions found in some remand centres. However, it is difficult to quantify the overall impact of these events on sentence lengths. This would also tend to result in reduced sentence lengths, although there is as yet no hard data to back up these speculations. The continued expansion and improvements to the adult criminal court and correctional services information capacities, as planned by the CCJS, will no doubt aid future study. ii
ACKNOWLEDGMENTS The analysis in this document is based, in part, on data from the Canadian Centre for Justice Statistics that has been provided by various federal, provincial, territorial or municipal agencies responsible for the administration of justice. The opinions expressed are those of the author(s) and do not necessarily represent the views of Statistics Canada or the data providers. iii
Table Of Contents EXECUTIVE SUMMARY............................................................................................................. i ACKNOWLEDGMENTS............................................................................................................. iii TABLE OF CONTENTS.............................................................................................................. iv LIST OF TABLES ......................................................................................................................... v LIST OF FIGURES ....................................................................................................................... v INTRODUCTION .......................................................................................................................... 1 Corrections Population Growth .................................................................................................. 2 Examining Overall Sentencing Patterns in Canada .................................................................... 3 METHODOLOGY......................................................................................................................... 6 ARE MORE MEN BEING CHARGED AND SENTENCED TO PRISON? .......................... 8 ARE PRISON SENTENCES GETTING LONGER?............................................................... 12 WHAT ABOUT CASES WITH A FEDERAL SENTENCE? ................................................. 16 Comparing Court Sentences to Correctional Admissions ........................................................ 16 Are Average Federal Sentences Getting Shorter? .................................................................... 17 Violent Crime ........................................................................................................................ 19 Property and Other Crimes................................................................................................... 20 Murder................................................................................................................................... 23 REGIONAL VARIATIONS IN COURT SENTENCING ....................................................... 25 Federal Sentences Vary by Jurisdiction.................................................................................... 25 Changes in Median and Mean Sentence ................................................................................... 25 FACTORS IMPACTING ON THE LENGTH OF PRISON SENTENCE ............................ 27 The Population on Custodial Remand is Growing ................................................................... 27 Time Spent on Remand............................................................................................................. 29 Elapsed Time for Trials ............................................................................................................ 29 Discounts for Remand Time ..................................................................................................... 31 Are Discounts Becoming Greater?....................................................................................... 32 SUMMARY AND CONCLUSIONS........................................................................................... 34 REFERENCES ............................................................................................................................. 36 APPENDIX A: SENTENCE LENGTHS IN 8-JURISDICTIONS .......................................... 37 iv
LIST OF TABLES Table 1: Federal Admissions: Comparing FY 2002 with FY 1997 ................................................ 1 Table 2: Annual Male Sentenced Admissions ................................................................................ 2 Table 3: Adult Males Charged by Police Since 1994 (8-Jurisdictions).......................................... 8 Table 4: Adult Men Convicted of Criminal Code Offences, 1994/95 to 2001/02 (8-Jurisdictions) ............................................................................................................. 10 Table 5: Prison Commitments from the Courts, 1994/95 to 2001/02........................................... 11 Table 6: Adult Men Sent to Prison: % by Length of Sentence, 8-Jurisdictions, 1994/95 to 2001/02 ......................................................................................................... 13 Table 7: Cases with a Federal Sentence........................................................................................ 16 Table 8: Average Federal Sentence for Federal Men at Admission (Mean Days), 1994 to 2002 .................................................................................................................. 18 Table 9: Mean and Median Sentences (Days) in 2001/02 ............................................................ 26 Table 10: Adult Correctional Services, Average Counts of Offenders in Provincial, Territorial and Federal Programs ................................................................................. 28 Table 11: Mean Elapsed Time in Court (in Days)........................................................................ 30 LIST OF FIGURES Figure 1: Adult Males Charged by Police Since 1994 (8-Jurisdictions) ........................................ 9 Figure 2: Average (Mean and Median) Prison Sentence in the 8-Jurisdictions - Days................ 14 Figure 3 : Violent Crimes ............................................................................................................. 19 Figure 4: Property and Other Crimes............................................................................................ 21 Figure 5 : Mean Sentence for 8 Selected Offences....................................................................... 22 Figure 6 : Mean Time to Parole Eligibility for Murder 1 and 2 (Years) ...................................... 23 Figure 7 : Mean Elapsed Time in Court (8-Jurisdictions) ............................................................ 31 v
INTRODUCTION A report recently released by the Research Branch, which compared profiles of men with a new court commitment to federal penitentiaries in FY 2001-02 with those that had been admitted in FY 1996-97 (Boe et al, 2003), found that the proportion of men admitted with a sentence "under three years" had increased from 34% to 46% of total new federal admissions. This change represents a gain of 38%, and is statistically significant.1 Meanwhile, the proportions admitted with intermediate and longer sentences (e.g., those with fixed sentences from 3 to ten years or more) decreased by a corresponding amount and the proportion admitted with a life or indeterminate sentence remained unchanged.
Table 1: Federal Admissions: Comparing FY 2002 with FY 1997
Length of Sentence ***
FY 2001-02
FY 1996-97
Men
Number
Under three years
1,848
Three to six years
1,548
Six to ten years
341
Ten years or more
96
Life or indeterminate
155
R. Boe, et al (2003). Research Branch, Report R-132.
% Number %
46 1,516 34
39 1,955 44
9
568
13
2
204
5
4
189
4
The fact that the proportion of new court committals with a short sentence has increased significantly over the five years, suggests by inference that the average length of sentence for federal men may also be decreasing. One goal of this report is to see whether this reduction in the average length of sentence is indeed true, not only of federal admissions but also for adult men convicted in Canada generally.
1 In this instance, significance at p< .001. Note that FY (fiscal year) means new court commitments admitted into federal custody between April 1 2001 and March 31, 2002 of the respective years. 1
Corrections Population Growth Canada's adult prison population, in both Federal and Provincial / Territorial (P/T) establishments, began the 1990's with a significant growth spurt. From an average actual-in count of just over 29,220 inmates in 1990/91, the adult prison population grew by 15.7% to reach just over 33,800 in 1995/96. However, this proved to represent the apex of the prison population increase, and since then the population has been gradually falling until by 2000/01 it was down to just over 31,500 offenders, a decrease of 6.7% from its earlier peak.2 Much of this reduction in average counts is no doubt due to decreases in the annual number of offenders sentenced to prison.
Table 2: Annual Male Sentenced Admissions
Year
Canada
Provinces and territories
1990/91
110,186
1991/92
118,673
1992/93
119,923
1993/94
114,481
1994/95
112,101
1995/96
108,520
1996/97
102,541
1997/98
93,948
1998/99
89,085
1999/00
83,200
2000/01
77,710
2001/02
79,337
Source: CCJS Adult Correctional Services In Canada.
105,679 113,489 114,508 109,008 107,324 104,251 98,283 89,751 84,671 79,065 73,644 75,416
Federal jurisdiction 4,507 5,184 5,416 5,473 4,777 4,269 4,258 4,196 4,414 4,134 4,066 3,921
2 These data are from the CCJS historical adult corrections database. See the Juristat: Adult Correctional Services in Canada, 2000/01. 2
For example, as shown in Table 2 (above), total male admissions have declined to just over 79,000 sentenced admissions in 2001/02, after having previously increased during the early 1990s, from just over 110,000 in 1990/91 to nearly 120,000 sentenced admissions in 1992/93. The number of sentenced male admissions to provincial/territorial facilities actually peaked in 1992/93 whereas they peaked one year later in federal facilities. These data suggest that the decline in annual sentenced admissions was the major contributing factor in the decrease of the male adult prison population after 1993. The question is, are prison sentences (and specifically, federal sentences) themselves becoming shorter in Canada, and has this made any contribution to the recent downward trend in prison populations? Finally, if Canadian courts are imposing shorter average prison sentences what is the most probable cause(s)? If the relevant causes can be identified, it may be easier to predict future trends. Examining Overall Sentencing Patterns in Canada Because the jurisdiction over adult prisoners in Canada is split between two levels of authority, depending on the length of sentence that the courts decide to impose in every case, any study examining the length of prison sentences must take this split into account. The demarcation line as to whether the Federal or a Provincial / Territorial (P/T) jurisdiction has responsibility for an offender sentenced to prison is what is called the "two year rule" -- offenders sentenced to less than two years in prison (as well as all offenders remanded into custody while awaiting trial) are the responsibility of a P/T jurisdiction. Meanwhile, the Federal authority (i.e., the Correctional Service of Canada) has jurisdiction over all offenders sentenced to a prison term of two years or more or to life sentences. Because of the split jurisdiction, an offender sentenced to "2 years less a day" will become the responsibility of a P/T authority whereas an offender sentenced to "two years" would become a federal (CSC) responsibility. In Canada, approximately 95% of all persons convicted in an adult criminal court each year receive a P/T sentence, and just 5% receive a sentence to a federal penitentiary. Moreover, the median sentence length in 2001/02 for all prison sentences was 30 days (54% of sentences were for 30 days and under), while the mean sentence was 125 3
days.3 Therefore, "federal" sentences are is clearly reserved for the more serious offences, or for persistent criminal behaviour. Strictly speaking, the difference in sentence length between a Federal and a P/T sentence may only amount to one day (e.g., a sentence of "2-years less a day", versus a sentence of "2-years and over"). However, Canadians would mostly view the federal sentence as the more serious penalty (and the prisoner will be incarcerated in company with Canada's convicted murderers, rapists, armed robbers, and others who typically receive federal sentences). Because of the "two year rule", sentence length research must take into consideration: 1) the average length of prison sentences for all adults criminal court cases; 2) whether a greater or lesser proportion of all prison sentences are for a federal term and; 3) whether those federal terms are getting longer or shorter. The question has also been posed as to the reasons that Canadian courts are imposing longer or shorter average sentences. A number of different factors have been suggested as having an impact on sentencing practice in Canada. However, one factor in particular -- the increasing delays that the accused are subject to in the adult criminal courts -- may be of particular significance. · The courts appear to have increase the sentence discount for longer stays in remand, as a response to growing court backlogs, etc. This issue will be discussed in a later section, but our examination is strictly an overview, not intended as definitive analysis. The impact of this factor on sentence length trends requires more time than is available here, nor are the current data adequate to do the issue justice. To summarize, because jurisdiction over adult prisoners in Canada is split between the Provincial/Territorial and Federal authorities, we will need to approach the sentence-length question in a series of logical steps: 1. What proportions of convicted offenders in Canada receive custodial sentences? 2. Are these custodian sentences getting, on average, longer or shorter, 3 These data are from the CCJS Juristat: Adult Criminal Court Statistics, 2001/02. 4
3. What proportion of the custodial sentences is for a federal term (two years and over)? 4. Is the average length of sentences for federal offenders getting longer or shorter? 5
METHODOLOGY This study explores the issue of the average length of prison sentences in Canada, generally, and specifically the question of whether federal sentences have been getting longer or shorter. A significant part of the analysis in this report therefore relies on official statistics relating to police reported charging trends, and trends in sentencing in Canada's adult criminal courts. This part of the analysis is drawn from data that the Canadian Centre for Justice Statistics collects in its annual Uniform Crime Reporting (UCR) Survey, and the Adult Criminal Court Survey (ACCS). The CCJS has kindly provided its' statistical partners with access to electronic files containing historical police and adult criminal court data. For the analysis of prison sentences at the time of federal admission, we have used statistics constructed from the Correctional Service of Canada's Offender management system (OMS) by staff of the Research Branch. Historical crime incident data based on police reports has been collected by Statistics Canada in a Uniform Crime Reporting (UCR) survey that began in 1962. The information on adult criminal court caseload is taken from the Adult Criminal Court Survey (ACCS), which began collecting data in FY 1994/95. Because ACCS data begins in 1994/95, we have therefore limited our study of prison sentence-lengths to the period covered by court statistics. Crime and adult court trends can easily be calculated from the annual surveys, provided that reports for the same jurisdictions are used each year. This is not a problem for police data, as the UCR survey has complete national coverage, but coverage for the adult criminal court survey still has significant gaps. In this regard, New Brunswick and British Columbia were added to the ACCS survey in 2001/02, but because they did not report in prior years they have of necessity been excluded from our trend analysis. Also, statistics for the Northwest Territories were excluded because of missing or partial information for several of the previous years. This leaves 8 jurisdictions that reported every year since 1994-95, and are thus included in this analysis: Newfoundland and Labrador, Prince Edward Island, Nova Scotia, Quebec, Ontario, Saskatchewan, Alberta and Yukon Territory. It is generally thought that these 8 jurisdictions account for about 80% of the annual caseload of Adult Criminal Courts in Canada. 6
To be consistent, we have used police statistics only for the same 8 jurisdictions for which historical Adult Criminal Court Survey reports are available. 4 The federal sentencing data represent a complete file of all new court commitments (what the Correctional Service of Canada traditionally labels: "Warrant of Committal" admissions), for male offenders admitted into federal jurisdiction from 1994 onward. All offences associated with the first term of that sentence were examined and categorized by the "most serious offence" on the sentence (either the offence with the longest sentence, or when tied, according to the relative seriousness classification). Finally, we have limited the analysis in this report to sentences for adult men in Canada, adult women were excluded from this study because when examining the details for specific crimes, it was found that too few cases often existed to permit computing reliable historical averages and trends. 4 We have matched the annual UCR statistics for comparison with the corresponding ACCS series. Note that there is some slippage because the UCR survey is conducted on a "calendar-year" basis (January to December), whereas the ACCS is collected on a "fiscal-year" (i.e., April to March) basis. For example, the 1994 calendar year crime statistics are compared with the 199/94 fiscal year court statistics. 7
ARE MORE MEN BEING CHARGED AND SENTENCED TO PRISON? We begin the analysis by examined the UCE survey statistics on the number of adult men charged by police for Criminal Code offences, in those 8 jurisdictions for which we have corresponding adult court sentencing data since 1994/95. The UCR statistics show the number charged by the police has increased in the most recent two years of the study (2000 and 2001). However, these recent increases have gone against the dominant trend that existed for the period since 1994, which was marked by decreases in the number of male adults charged each year until 2000 and 2001.
Table 3: Adult Males Charged by Police Since 1994 (8-Jurisdictions)
All Criminal Code (Ex. Traffic)
Violence
Property
Other CC
1994
273,634
81,803
96,095
95,736
1995
260,877
76,533
92,903
91,441
1996
260,214
75,683
94,330
90,201
1997
243,947
72,961
85,261
85,725
1998
240,883
72,026
81,785
87,072
1999
234,992
69,472
76,597
88,923
2000
240,289
73,338
72,734
94,217
2001
254,056
77,888
71,945
104,223
2002
252,325
76,952
71,571
Source: CCJS Crime in Canada, 2002 (Crime Indicators Database)
103,802
Crime rates in Canada began falling in 1991, and this trend continued throughout the 1990s. Since 1999, however, the overall number of adult men charged by police for Criminal Code infractions has increased. During the six years from 1994 to 1999, the number of adult males charged with a Criminal Code offence declined from 274,000 to just 235,000, a reduction
8
of just under 39,000 men charged or about 14%.5 Following this long decline, charges then increased again in both 2000 and 2001 before falling back slightly in 2002. However, the count of men charged in 2001 (254,000) was still almost 22,000 fewer (an 8% reduction) than in 1994. These statistics on adult men charged are presented in Table 3 above (note that these data represent police charges in the 8 selected jurisdictions only):
Figure 1: Adult Males Charged by Police Since 1994 (8-Jurisdictions)
Crimes of Violence 120,000
Property Crimes
Other Criminal Code
100,000
80,000
60,000
40,000
20,000
0 1994 1995 1996 1997 1998 1999 2000 2001 2002
Looking at the number of adult men charged by major offence groups, we see in Figure 1 (above) that the recent increase in the number of men charged by police is accounted for by the increase in men charged with "Other Criminal Code" offences (typical crimes included under the rubric of "Other CC" include: Gaming and Betting; Offensive Weapons; Arson; Bail Violations; Counterfeiting Money; Disturbing the Peace; Indecent Acts; Kidnapping; Public Morals; Obstructing a Police Officer; Trespass at Night). There was also an increase in the number of 5 Canadian Centre for Justice Statistics: Crime in Canada, 2002. The 8 jurisdictions that we have selected are those that have also reported to the Adult Criminal Court Survey (ACCS) since 1994/95: namely, Newfoundland and Labrador, PEI, NS, Quebec, Ontario, Saskatchewan, Alberta and Yukon. These 8 jurisdictions are thought to represent about 80% of the total adult criminal court caseload each year in Canada. 9
men charged for violent offences. The number of men charged by police with a property crime has not increased since a small blip in 1996. For a variety of reasons, fewer adult men are convicted in adult criminal courts in a given year than are charged by police. Table 4 (below) shows the total number of adult male cases with a guilty finding in the 8 jurisdictions for the period from FY1994/95 to 2001/02.
Table 4: Adult Men Convicted of Criminal Code Offences, 1994/95 to 2001/02 (8- Jurisdictions)
Total
Prison
Conditional sentence
Probation
Fine
Other
Unknown
1994/95
139,497
58,202
0
44,389
31,131
1,824
3,951
1995/96
139,669
57,801
0
45,458
29,082
1,851
5,477
1996/97
137,844
57,883
0
47,880
27,239
3,858
984
1997/98
134,246
55,934
0
48,836
24,519
3,493
1,464
1998/99
132,679
58,220
2,817
44,372
23,381
3,121
768
1999/00
129,517
56,056
3,579
43,638
21,856
3,040
1,348
2000/01
131,659
57,903
3,470
45,238
20,952
3,291
805
2001/02
137,628
59,059
4,545
46,231
20,624
3,615
3,554
Change N
-1,869
857
1,728
1,842
-10,507
1,791
-397
Change %
-1%
1%
61%
4%
-34%
98%
-10%
We can see by the figures in Table 4 that:
1. The number of cases with an adult court conviction for a Criminal Code offence decreased from 139,500 in 1994/95 to 129,500 cases by 1999/00, a decrease of about 10,000 cases or -7%). This decrease then reversed itself after reaching its lowest level in 1999/00, and the increase to 2001/02 was roughly in parallel with the trend we found earlier with the police statistics. The overall decrease in male convictions between 1994/95 and 2001/02 was about 1,900 cases, or ­1%. 2. During the first six years of the study, the number of cases sentenced to prison also decreased (down from 58,000 to 56,000 cases, a decrease of just over 2,000 cases or -3%). Once again, from 1999/00 to 2001/02 the number of cases 10
sentenced to prison increased, this time by just over 3,000 cases or +5%. Thus, over the full nine years, the number of adult men sentenced to prison in the 8 jurisdictions increased by about 900 cases, or 1%.
In summary, over the past 9 years, the number of adult men found guilty and sentenced to prisons for a Criminal Code offence decreased for the first six years, then rose in the last two reported years, with the net result that about 900 more adult men received a prison sentence in 2001/02 than in 1994/95. Based on these trends, we would normally expect admissions to adult prison (federal and Provincial/Territorial) during the period since 1994/95 to have followed a similar pattern. As table 5 (below) indicates, this has not really happened.
Table 5: Prison Commitments from the Courts, 1994/95 to 2001/02
Estimated Male Sentenced Admissions to 8 P/T Jurisdictions
Total* Male federal Estimated Total Male
WoC admissions (All Admissions from the
Jurisdictions)
Courts (8-Jurisdictions).
1994/95
97,854
4,634
102,488
1995/96
96,321
4,244
100,565
1996/97
91,478
4,379
95,857
1997/98
82,773
4,221
86,994
1998/99
78,157
4,414
82,571
1999/00
70,575
4,124
74,699
2000/01
67,476
4,049
71,525
Source: CCJS, Adult Correctional Services in Canada. Correctional Service of Canada CJIL database. Note that the estimated proportion of annual sentenced admissions that are female has been used to reduce P/T admissions. Correctional Service of Canada male admissions are for all jurisdictions as it is not possible to accurately separate out the 8 jurisdictions that are used to obtain the P/T totals.
Rather, at least through 2000/01, the number of new prison commitments has continued to decline. One explanation for this discrepancy may be found in the statistics for Conditional Sentences (see Table 4 above), which saw the number of Conditional Sentences increased from 0 cases in 1997/98 to 4,545 cases in 2001/02.
11
ARE PRISON SENTENCES GETTING LONGER? We have seen that new prison commitments from the courts have decreased in Canada since 1994/95. Now we want to see whether the average prison sentence-length has changed. In Table 6 (below), we present statistics of men receiving a custodial sentence since 1994/95, grouped according to the sentencing length categories published by Statistics Canada. Over the total eight years: 1. There was an increase in the proportion of sentenced cases that received a federal sentence ("24 months or more"). This proportion increased from 2.9% in 1994/95 to a high of 3.9% in 1999/00, and then fell back slightly to register 3.6% in both 2000/01 and 2001/02. The increase to 3.6% represents a gain of 221 cases as compared to 1994/95, or a proportional gain of 11%. 2. Second, the proportion of cases that received the next longest sentence, a term of ">12 to <24 months", also increased (albeit slightly, from 2.7% to 2.9% overall). Because of the overall decline in the number of cases, this proportional increase was not enough to prevent an actual decrease -- of -47 cased -- between 1994/95 and 2001/02. 3. Finally, as regards the remaining sentence categories, between 1994/95 and 2001/02 the overall proportion of sentenced men who received the shortest sentence (i.e., "1 month or less") increased (from51.7% to 52.8%); the proportion receiving the next shortest sentence (from ">1 to 3 months") decreased from 25.7% to 24.1%; the proportion receiving a sentence of ">3 to 6 months" decreased (from 11.4% to 10.9%); finally, the proportion that were sentenced to ">6 to 12 months" remained basically unchanged (5.6% in both periods). 12
Table 6: Adult Men Sent to Prison: % by Length of Sentence, 8-Jurisdictions, 1994/95 to 2001/02
Year
1 month or less
>1 to 3 months
>3 to 6 months
>6 to 12 months
>12 to <24 months
24 months or more
1994/95
51.7%
25.7%
11.4%
5.6%
2.7%
2.9%
1995/96
50.2%
26.2%
11.4%
5.9%
2.9%
3.3%
1996/97
50.2%
25.7%
11.8%
6.1%
3.0%
3.2%
1997/98 1998/99 1999/00 2000/01 2001/02
49.8% 49.1% 49.8% 51.4% 52.8%
25.9% 25.9% 25.6% 24.4% 24.1%
11.9% 11.9% 11.7% 11.4% 10.9%
6.1% 6.2% 6.0% 5.9% 5.6%
3.1% 3.1% 3.0% 3.2% 2.9%
3.2% 3.8% 3.9% 3.6% 3.6%
Change 1994/95 to 2001/02 (N) Change 1994/95 to 2001/02 (%)
-2,901 -8.1%
-2,759
-1,065
-390
-15.5%
-13.5%
-10.0%
-47 -2.5%
221 11.0%
Source: CCJS, ACCS survey. Distributions reflect the convictions for Total Criminal Code offences.
A larger proportion of sentences in 2001/02 were of 1 month of less, as compared to 1994/95, and a smaller proportion with sentences of >1 month through 12 months. During this period, slightly more cases received >12 to <24 month sentences, and significantly more received sentences of 2 years and more. Statistics Canada also provides summary statistics that measure sentence length trends. They have calculated both the "median" and the "mean" length of sentences for standard offence groupings. · The "median" sentence represents the mid-point of all the sentence values when all values are sorted by size. Therefore, it is the point above or below which exactly half of all sentences will fall.
13
· The "mean" sentence represents the statistical average, of each length of sentence multiplied by the number of cases it represents and the sum then divided by the total number of cases. This statistic is more sensitive to the number of longer sentences (when sorted to calculate a mean).
In 2001/02, the median sentence was 30 days, and when sorted by sentence-length half of all adult provincial / territorial criminal court sentences fell below 30 days, while half were longer. When we examine the distributions in Table 5 we find that 52.8% of all custodial sentences imposed in 2001/02 were to one month less. Moreover, other than for a brief 3-year period from 1997/98 through 1999/00, the "median" sentence to prison in adult criminal courts have been the "1 month or less" category since 19994/95. A similar pattern is found for the mean sentence-length. We can see from the following chart that the mean sentence increased from 115 days in 1994/95, to 133 days reached in 1998/99, before falling back to 125 days in 2001/02). However, the mean length of sentence (125 days) in 2001/02 is still higher than it was in 1994/95 (115 days).
Figure 2: Average (Mean and Median) Prison Sentence in the 8-Jurisdictions - Days
140
133
120
123
123
125
130
127
125
115
100
80
Mean
60
Median
45
40
40
40
30
30
30
30
30
20 * Source: CCJS (ACCS) 0 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 14
What are we to make of the fact that the median length of prison sentence has remained virtually unchanged (at 30 days) at the end of the period, whereas the mean sentence still increased quite significantly (from 115 to 125 days, or a 9% increase)? The relationship between the two summary statistics can be interpreted as follows: · First, the percent of cases with a "median" sentence of 30 days or less was about 53% in 2001/02, or roughly the same as in 1994/95 (52%). · However, amongst that 50 percent there were significantly more of the longer sentences (enough to raise the mean sentence length from 115 to 125 days). These statistics therefore confirm the trends seen in the tabular analysis, where we found that sentences "24 months or more" had increased from 2.9% to 3.6% of all custodial sentences, and the proportion of sentences of ">12 to <24 months" also increased, but only slightly, from just 2.7% to 2.9%. We can see how the "two year" rule makes this process more complex -- it seems that almost all the increase observed in the mean sentence-length statistic can be accounted for by the increase in the proportion of custodial sentences of "24 months or more" (i.e., the federal terms). These findings support the conclusion, that comparing sentence lengths in 1994/95 and 2001/02: · The "median" length of sentence did not change. · There was an overall increase in "mean" sentence lengths that is mainly accounted for by more convicted offenders receiving a federal term. Although these conclusions are based on statistics for just 8-jurisdictions, it is likely they are representative of nationwide trends. 15
WHAT ABOUT CASES WITH A FEDERAL SENTENCE? The preceding evidence indicates that the mean length of prison sentence handed down in adult criminal courts in Canada since 1994/95 has been increasing, but this is mainly because the proportion of cases that receive a federal term has been growing. This proportion of sentenced male prisoners increased by about 10% over the 8-years under study. Overall, however, the number of adult men that received a prison sentence has declined significantly in this period, from about 69,200 cases in 1994/95 to about 62,300 in 2001/02, a decrease of nearly 6,900 cases (or 10%) in the 8 jurisdictions we have examined. Thus, the increase in the proportion of adult men that received a federal sentence has offset the overall decrease in convicted cases sent to prison.
Table 7 : Cases with a Federal Sentence
Fiscal Year
1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02
Number sentenced Percent sentenced
2,010 2.9%
2,262 3.3%
2,165 3.2%
2,088 3.2%
2,420 3.8%
2,353 3.9%
2,272 3.6%
2,231 3.6%
In 1994/95 there were 2,010 adult men who received a federal sentence from the adult criminal courts in the 8 jurisdictions, and this number increased to 2,231 by 2001/02. This represents an actual gain of 221 more federal cases than would have occurred had the proportion of men sent to prison with a federal sentence not increased (i.e., from 2.9% to 3.6%) during that interval.
Comparing Court Sentences to Correctional Admissions It should be noted from the beginning that the number of cases sentenced to prison, as reported by the ACCS, would differ from the number of actual admissions to correctional facilities. For one thing, the number of admissions to correctional facilities includes persons sentenced in Superior Courts, as well as admissions resulting from fine defaults.6 The ACCS data does not include sentences from Superior Court nor are sentences for reason of fine defaults collected by the ACCS.
16
In addition, this study is limited to the 8 jurisdictions we have identified. These 8 jurisdictions represent approximately 80% of the total provincial/territorial adult criminal court caseload, according to Statistics Canada's estimate. Finally, only sentenced cases for Criminal Code convictions were examined. Thus, Criminal Code Traffic offences and Other Federal Statute offences were excluded. According to the 2001/02 ACCS, Criminal Code charges represented 87% of cases, and Criminal Code Traffic offences represented 14% of that total. Federal Statute Offences represented the remaining 13% of cases.7 A significant number of federal offenders are admitted each year with these convictions. Are Average Federal Sentences Getting Shorter? This brings us to the next question: Whether average federal sentences at admission are getting shorter? To answer this question, historical information on new federal court commitments has been extracted from the Correctional Service of Canada's Offender Management System (OMS) covering the period since 1994. To somewhat simplify the amount of data that needed to be processed for this report, we have identified 8 of the most common and serious federal offences (listed below in Table 8): The eight most common federal offences collectively account for about 70% of all new court committals to federal custody each year. The most serious sentence on the federal term was identified, and the mean length of sentence of every group computed for each year. (A separate series was compiled for offenders sentenced for murder, and these cases are examined in the next section.) 6 CCJS Juristat Adult Criminal Court Statistics, 2002/03 (November 2003). Page 13. 7 CCJS Juristat: Adult Criminal Court Statistics, 2001/02 (March 2003). Page 2. 17
Table 8: Average Federal Sentence for Federal Men at Admission (Mean Days), 1994 to 2002
Admission Year
Sex Assault
Robbery
Major Assault
Other Violent 1
B&E
Theft MV
Impaired Driving
Theft
1994
1,547
1,451
1,238
1,144
1,045
864
1,029
1995
1,632
1,417
1,254
1,089
990
794
978
1996
1,530
1,469
1,247
1,182
1,005
995
919
1997
1,612
1,530
1,211
1,287
999
870
1,007
1998
1,529
1,493
1,157
1,091
1,030
857
892
1999
1,528
1,491
1,159
1,128
985
845
898
2000
1,430
1,421
1,191
1,118
991
1,096
909
2001
1,486
1,374
1,224
1,050
987
1,073
875
2002
1,406
1,308
1,130
1,095
934
839
910
Average
1,522
1,439
1,201
1,132
996
915
935
Change
-141
-143
-108
-49
-111
-25
-119
% Change
-9.1%
-9.9%
-8.7%
-4.3%
-10.6%
-2.9%
-11.6%
Source: Research Branch. Common assaults make up a large proportion of the "Other violent" category.
1,007 975 991 971 979 950 939 867 884 951 -123 -12.2%
Starting with calendar year 1994, the table (Table 8 above) depicts the mean length of sentence at admission each year for the 8 selected crimes. The mean sentence has decreased for each of the eight selected offences, although the rate of decrease varied among crime types. Between 1994 and 2002 the mean sentences have declined by as little as -25 days for Motor Vehicle Theft, and by as much as -143 days for robbery. Proportionately, the largest decrease was 12.2%, for thefts, while the smallest was -2.9% for Motor vehicle theft.
18
Violent Crime The first set of charts show the trends for the four most common violent offences.
Figure 3 : Violent Crimes
1,800 1,600 1,400 1,200 1,000 800 600 400 200 0
Sex Assault
1,800 1,600 1,400 1,200 1,000 800 600 400 200 0
Robbery
Other Violent 1 1,400 1,200 1,000 800 600 400 1 Includes common assaults 200 0
1,400 1,200 1,000 800 600 400 200 0
Major Assault
· The mean length of sentence for sexual assaults over the 9 years studied, was 1,522 days. The mean length of sentence for sexual assault in 1994 was 1,547 days, and this decreased to 1,406 days by 2002. The mean sentence for sexual assault fell by -141 days over this period, or by -9.1%. Although there is some variation around the trend, the overall drift is downward. Note that new court committals for sexual assaults increased rapidly after 1982, peaked around 1994, and have since fallen substantially from their 1990s peak. 19
· The mean sentence for Robbery averaged 1,439 days. Historically, the mean sentence for robbery was 1,451 days in 1994, but this has fallen to 1,308 days in 2002. There is a definite downward trend over the whole period as the mean sentence for robbery fell by -143 days, or by -9.9% over the whole period. · The mean sentence for Major Assaults also shows a gradual downward trend. Overall, the mean sentence length averaged 1,201 days. Historically, the mean sentence for major assault was 1,238 days in 1994 and had fallen to 1,130 days in 2002. The decrease was -108 days, or -8.7% for the whole period. · The trend for "other violent" offences (which includes "common" assault) shows a non-linear trend downward from 1994. The mean sentence for other violent offences averaged 1,132 days. The mean in 1994 was 1,144 days and this has since decreased to 1,095 days in 2002. The decrease for the whole period was -49 days, or a -4.3% decrease. Property and Other Crimes The next set of charts reflects the mean sentence length at admission of the four-selected property and other offences (Break and Enter, Theft, Theft Motor Vehicle, and Impaired Driving). 20
Figure 4: Property and Other Crimes
1,200 1,000 800 600 400 200 0
B&E
1200 1000 800 600 400 200 0
Theft MV
1,200 1,000 800 600 400 200 0
Impaired Driving
1,200 1,000 800 600 400 200 0
Theft
· The overall mean sentence length for Break & Enter averaged 1,025 days since 1994. The historical series starts at 1,045 days in 1994 and ends at 934 days in 2002. The trend decreased by -111 days, or -10.6% over the period. · The mean sentence length for Theft averaged 951 days over the full period. The historical series starts at 1,007 days in 1994 and ends at 884 days in 2002. This series decreased by -123 days over this period, or by -12.2%. · There is also a downward trend for Motor Vehicle Theft that has become more erratic in recent years. The historical series starts at 864 days in 1994 and ends at 839 days in 2002. The mean sentence throughout the period averaged 915 days. The overall decrease was -25 days, or a decrease of -2.9% for the whole period. 21
· Finally, there is also a downward trend for impaired driving that gradually has leveled off in recent years. The mean sentence throughout the period averaged 935 days. The historical series starts at 1,029 days in 1994 and ends at 910 days in 2002. The overall decrease was -119 days, a decrease of -11.6%.
Figure 5 : Mean Sentence for 8 Selected Offences
1,400
1,300
1,200
1,100 1,000 900
y = -18.5 days + 1,369.5 R 2 = 0.785
800
Mean 8 Selected Offences
700
9-Year Trend
600 1994 1995 1996 1997 1998 1999 2000 2001 2002
As we have discovered, the "mean" federal sentence at admission has decreased for each of the eight offences tracked since 1994. In the chart above, the sentence lengths for the 8 offences were grouped together to create an overall composite measure. The composite mean reflects the downward trend in individual items found previously. The mean length of sentence for the composite 8 offences was 1,322 days in 1994 and by 2002 had decreased to 1,162 days. Over the total period under study, this represents a reduction in the mean sentence length of about ­161 days, or a proportional reduction of about 12%. A statistical trend line has been fitted to the date. This produced a linear trend line with downward slope, and the model was quite a good fit (R2 = .785). According to the statistical model, the mean sentence length was estimated at 1,369.5 days in 1994, and this has decreased by about 22
18.5 days each year since then (e.g., the average length of sentence has become about Ѕ a month shorter each year). Murder Since offenders convicted of murder under Canadian law receive a life sentence, it is not possible to calculate a "mean" length of sentence in the conventional way. The penalty for conviction for murder in Canada is life in prison, but offenders serving life sentences become eligible for consideration for parole at a time indicated on the sentence. Whether they are released at their first parole eligibility date remains the prerogative of the National Parole Board. For offenders convicted of first-degree murder, the minimum time by statute before becoming eligible for parole is 25 years, but the court may review this after the offender has served 15 years of the sentence. The minimum custodial sentence for a second-degree murder conviction is 10 years and the maximum 25 years, to be specified by the sentencing judge. In the following chart, therefore, we show the mean sentence to be served as measured by earliest date for parole eligibility (for murder-1 and murder-2 cases admitted) since 1994.
Figure 6 : Mean Time to Parole Eligibility for Murder 1 and 2 (Years)
25
22.7 20
21.9 22.4 22.3 22.5 22.5 21.6 22.9
20.1
15
10 10.7
10.4
11.9
11.0
11.0
11.0
11.1
10.4
11.0
5
Murder 1
Murder 2
0
1994 1995 1996 1997 1998 1999 2000 2001 2002
23
Examining the two series, we see there appears to be hardly any change in the mean sentence before parole eligibility for murder-1 and murder-2 cases since 1994. There was a slight increase in the mean sentence, from 22.7 years for murder-1 cases in 1994 versus 22.9 years in 2002, and also a slight increase in the mean sentence of 10.7 years to 11.0 years for murder-2 cases. However, neither change constitutes a significant trend. 24
REGIONAL VARIATIONS IN COURT SENTENCING Considerable variation is to be found in the sentencing patterns, and the proportion of convicted cases that receive a federal term, among the different adult criminal court jurisdictions across Canada. Federal Sentences Vary by Jurisdiction Of the 8 Jurisdictions for which complete data exists between 1994/95 and 2001/02, increases in the federal sentence proportion occurred in four (Newfoundland and Labrador, Quebec, Saskatchewan and Alberta), while the other four (P.E.I., Nova Scotia, Ontario and Yukon) have shown a decrease. Among the 4 jurisdictions that had an increase in 2001/02 over 1994/95, the increase totaled 288 cases as follows: 1. The number of cases in Newfoundland and Labrador with a federal term increased by 9 cases from 1994/95 to 2001/02, or nearly 44%; 2. Quebec had an increase of 145 cases or 22%. 3. Saskatchewan saw an increase of 10 cases or 8.8%; 4. Alberta had an increase of 124 cases or nearly 34%. Provinces and Territories with a decrease in 2001/02 as compared to 1994/95, decreased overall by ­67 cases as follows: 1. In Prince Edward Island the number of federal sentences decreased by 14, or a decrease of 70%; 2. Nova Scotia had a decrease of 32 cases, or nearly 24%; 3. Ontario had a decrease of 20 cases, or nearly 2.9%; 4. Yukon had a decrease of 1 case, or nearly 20%. Changes in Median and Mean Sentence There was also some variation in both the "median" and the `mean" sentence of the courts among the 8 jurisdictions. In five of the jurisdictions (Newfoundland and Labrador, Nova 25
Scotia, Ontario, Alberta and Yukon) the median sentence length in 2001/02 was 30 days. However, in P.E.I. the median sentence was 17 days, while in both Quebec and Saskatchewan it was 60 days. Meanwhile, mean sentences varied even more, from a low of 55 days in P.E.I., to a high of 226 days in Quebec. On the other hand, P.E.I. sent the largest proportion of cases found guilty to prison (nearly 64%) while in Quebec this proportion (32.4%) was amongst the lowest. Table 9 (below) shows the mean and median sentences for the 8 jurisdictions in 2001/02.
Table 9 : Mean and Median Sentences (Days) in 2001/02
Jurisdiction
Mean Median
Jurisdiction
Newfoundland & Labrador
100 30
Prince Edward Island 55
17
Nova Scotia
172 30
Quebec Source: CCJS (ACCS)
226 90
Ontario Saskatchewan Alberta Yukon
Mean Median
84
30
151 60 124 30 103 30
Time does not permit us to provide a detailed examination of Regional variations or sentencing patterns in this report. However, in Appendix A of this report we have provided sentence length tables for each of the 8 jurisdictions. Anyone who wishes more detail than these tables provide should consult the CCJS about obtaining ACCS published tables for each province and territory.
26
FACTORS IMPACTING ON THE LENGTH OF PRISON SENTENCE In this section, we will briefly examine some evidence of the growing delays that criminal courts are experiencing, and the use of custodial remand. Space and data limitations do not permit a fuller analysis here, but an overview may prove useful in highlighting ongoing trends that could inform future research. The Population on Custodial Remand is Growing The number of persons remanded into custody has an impact on both the physical and financial resources of correctional facilities. The issue of population growth in correctional facilities has been recognized and a number of reforms were introduced in the 1990s that would reduce the reliance on incarceration and provide community/sentencing alternatives. However, most of these have no impact on remand populations. Provincial and territorial correctional services in Canada are responsible for all adults who have been charged with an offence and remanded (ordered by the court) to custody while awaiting a further court hearing. These people have not been sentenced but can be held for a number of reasons related mainly to risk (risk of failing to appear, danger to themselves or others, risk of re-offending, etc). Seemingly just as the sentenced population of adult prisoners in Canada began to recede, the population held in custodial remand began to increase. Between 1994/95 and 2000/01, the annual average prison count of sentenced inmates in P/T facilities decreased from 14,316 to 10,953 (a decrease of nearly 24%). However, during the same period the average count of persons remanded into custody increased from 5,327 to 7,428 cases (a gain of over 39%). Table 10 (below) indicates the comparative changes in the sentenced and the non-sentenced prison counts since 1994/95. 27
Table 10 : Adult Correctional Services, Average Counts of Offenders in Provincial, Territorial and Federal Programs
Fiscal Year 1994/95
Sentenced, actual-in count 14,316
Remand, actual-in count 5,327
1995/96
14,249
5,266
1996/97
13,522
5,734
1997/98
12,573
6,109
1998/99
12,478
6,472
1999/00
11,421
6,665
2000/01
10,953
7,428
2001/02
10,931
7,980
in Number
-3,385
+2,653
in Percent
-24%
+50%
Source: CCJS Adult Correctional Services in Canada historical database.
In a study of Custodial Remand that covered a 10 year period from 1988/89 to 1997/98, the CCJS reported that the average daily count of offenders remanded to provincial/territorial custody had increased by 45% in those years, from 4,200 in 1988/89 to about 6,100 by 1997/98. By 1997/98, 50% of all adult admissions were remand inmates, and this was up from 39% ten years earlier.8 Typically, offenders remanded into custody are more likely to have been charged with crimes against the person (43%) than the sentenced population (31%). According to a one-day snapshot survey, conducted in October 1996, both remand and sentenced inmates were more likely than the Canadian population to be young, unmarried, unemployed males with a grade nine education or less. Bail reform (bail supervision and verification programs) has been introduced in a number of Canadian jurisdictions (Statistics Canada, 1986). Practices of judges, crown counsel, and
8 Heather Gilmour, The Use of Custodial Remand in Canada, 1987/88 to 1997/98. Canadian Centre for Justice Statistics, Statistics Canada, 1999. 28
provincial/territorial policies can also affect the growth of the remand population. However, this relationship is difficult to determine in the absence of written guidelines. Occasionally, newspaper articles have inferred that over-crowding in correctional facilities is due to attempts by judges to be more conservative in granting bail applications, resulting in more people being held on remand. Also, as we have seen, there has been a striking increase since 1982 in the number of assault (especially sexual assault) cases, which may also have influenced the decision to remand more cases into custody. Time Spent on Remand We know that more people are being sentenced to custodial remand than before, but we do not yet know how long they spend on remand. The CCJS remand study (Statistics Canada, 1999) examined the "median" length of time in custody. As we have already seen, the median represents the mid-point of a series, and one-half the values are above and below this point. The median length of time served is generally short for remand inmates, and has not varied greatly in Canada over the last ten years. For the period from 1988/89 to 1997/98, the median time spent on custodial remand increased from 5 days to 7 days, with a brief dip in 1992/93 to 4 days. For our purposes, it would be better to have a measure of "mean" days on remand, since this is more sensitive to longer remand periods, but this statistic is not available in that study. We have seen earlier that the median length of prison sentence in Canada is about 30 days, so a remand time of 6 days represents about 20% of the custodial sentence. Elapsed Time for Trials Statistics Canada also collects statistics on the average elapsed time required for trials in adult criminal courts. Not all this elapsed time will be accounted for by persons remanded into custody by the courts, as some people awaiting trial will not be remanded into custody at all (i.e., released on bail, or their own recognizance). However, if elapsed court times are increasing then it not unreasonable to assume that there is some increases in the duration of those cases that were remanded into custody. According to Statistics Canada (ACCS, 2001/02), the mean elapsed time from first to last appearance for criminal code offences (excluding traffic), increased from 137 to 190 days during the period between 1994-95 and 2001/02. This represents an increase in the elapsed time of 29
nearly 39%. If we examine Statistics Canada figures for the elapsed time at trial for some of the more common criminal offences, we find the results as shown below:
Table 11 : Mean Elapsed Time in Court (in Days)
Fiscal Year
Robbery
Sexual assault
Major assault Common assault Break and enter
1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02 ( Days) ( %)
134 171 164 197 183 190 192 218 +84 +63%
200 231 239 245 251 251 266 298 +98 +49%
155 172 186 190 184 185 190 224 +69 +45%
127 138 142 149 147 149 154 175 +48 +38%
136 151 154 167 154 161 170 213 +77 +57%
Source: CCJS, ACCS 2001/02.
These data indicate a significant increase in trial delays has occurred for these common crimes, in the order of about 45% or greater increased in days of elapsed time. The mean elapsed time for robbery offences increased from 134 to 218 days, between 1994/95 and 2001/02 or an increase of 63% more days. Similarly, the increase for sexual assault was 98 days, or 49%; for major assaults it was 69 days or 45%; for common assault it was 48 days or 38%; and for break and enter it was 77 days or 57%.
30
Figure 7 : Mean Elapsed Time in Court (8-Jurisdictions) 350 300 250 200 150 100 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02
Sexual assault Robbery Major assault Break and enter Common assault
The elapsed time at trial for these crimes all follow a similar upward sloping trend from 1994/95 to the present. This is easy to see in the accompanying chart above. Of course, there are a number of explanations as to why elapsed times at trial are increasing. For example, one reason may simply be that cases in general are becoming more complex.9 Whatever the reason, it is clear that many cases are taking longer to process through the courts that previously, and when combined with a growing custodial remand population, has been causing delays which the Supreme Court of Canada has found to be prejudicial to a fair trial (e.g., R. vs. Askov, 1992). Discounts for Remand Time · The time an accused spends in jail on remand may be taken into account by the judge when imposing a sentence. Therefore, as the elapsed time for trial completion grows, the amount of the sentence discount might also increase. In custodial remand cases, judges deduct time already spent in custody from the sentence they would normally have applied. It is not uncommon for an
9 Statistics Canada gives several examples (ACCS, 2001/02, p. 9) of how cases have become more complex since 1997/98: The average number of charges per case has increased (from 2.12 to 2.20); The proportion of multicharge cases in increasing (from 47% of all cases to 49%), and; The proportion of cases with 3 or more charges has increased (from 19% to 22%). 31
offender to receive a sentence of "time served", for example, when the accused has spent as much time or more remanded into custody as that judge normally would have imposed as a sentence. Moreover, this latter practice will skew sentence distributions slightly towards shorter sentences, since the clerks keeping records will record such sentences as one day or "released at court". Are Discounts Becoming Greater? · More recently, the media has commented on a growing trend to increase the sentence discount, to compensate offenders both for the longer stays that they are experiencing in custodial remand as well as the perceived harsher conditions in some remand facilities. Are sentences generally being given greater discounts for court delays and lengthening (or overly harsh) remand conditions? The use of sentence discounting relates to situations where the courts have given extra credit for time spent behind bars before conviction, cutting back the punishment they deliver accordingly. However, recent media reports indicate that judges have started to discount sentences at some "multiple" of the time serves, albeit mainly in unusual cases. 10 Sentence discounting provides one explanation of why prison sentences are becoming slightly shorter, to reflect longer periods of custodial remand, but also because (as noted earlier) "time served" sentences are typically reported as one day. Although anecdotal evidence has been reported of judges that have begun giving multiple credits for extreme delays, it is difficult 10 The evidence at this time is mainly coming from the media. For example, a report in the June 8, 2002 Globe and Mail states that an Ontario Judge sentenced a repeat car thief to just one day in prison, ruling that the circumstances of his six months in pre-trial custody at the Don Jail were so inhumane that the time would be counted as 24 months. In another story, this time in the In October 19, 2002, National Post, Tom Blackwell reported that brutal conditions in provincial jails are prompting more and more judges to reduce the sentences they impose. "In numerous cases, the courts have broken with years of precedent and given extra credit for time spent behind bars before conviction, cutting back the punishment they deliver accordingly." Meanwhile, a Toronto Star (May 6, 2003) report by Peter Edwards cited a judge as giving a rare "three-for-one" credit for time served in pre-trial custody. 32
to quantify how extensive or widespread this practice has become. This is one area of sentencing where more and better data is obviously required. 33
SUMMARY AND CONCLUSIONS Canada's laws, especially concerning crimes against the person such as assaults and sexual assaults, underwent significant revisions beginning in the early 1980s. The impact of changes to the assault legislation in particular was immediately evident in the very rapid increases in incidents of those categories of violent crime reported by police thereafter. These increases persisted from the early 1980s through to the early 1990s, before they finally began to diminish or even reverse direction. Adult prison populations in Canada also increased rapidly, finally reaching a peak around 1995. Adult correctional populations in Canada have generally been declining since that time. Since 1994, when the ACCS survey was initiated, the overall number of cases of adult men brought to trial in P/T adult criminal courts has declined 14%. During this period the proportion of cases found guilty each year has remained virtually unchanged at roughly 63%, so the number of men found guilty has also decreased by roughly 14%. The number of cases of adult men who were actually sentenced to prison during 2001/02 decreased by nearly 18,000 cases as compared to 1994/95. The data actually indicate that a slightly larger proportion (up from 34% to 35%) of convicted cases in 2001/02 received a prison sentence than in 1994/95, but since overall cases had decreased, so too have the absolute number of prison sentences. Amongst those adult men receiving a prison sentence, the number of cases that received sentences less than 2 years decreased whereas the number that received a federal sentence (two years and over) actually increased. For example, between 1994/95 and 20001/02 the proportion of sentenced cases that received prison terms of "2 years and more" increased from 3.0% to 3.9%" (nearly a 30% increase), while in absolute terms this category increased by 221 cases. When we examined the average sentence length of male federal offenders admitted to federal corrections over this period, we found that the "mean" length of sentence has been falling. The mean length of sentences for the 8 most common federal offences examined all trended downward since 1994. The sentence-length for Murder-1 and murder-2 cases (as measured by time to first parole eligibility) has remained essentially unchanged over the period since 1994. Thus we found that the mean length of sentence for adult men in Canada has increased since 1994/95, but this is primarily due to an increase in the proportion of men sentenced to 2- 34
years and more. However, amongst federal prisoners the mean sentence length at admission has actually been decreasing. Because of the workings of the "two year" rule, fewer men were sent to prison but more men were sent to federal prisons, and with shorter sentences. We also examined several factors that might possibly shed light on these peculiar sentencing patterns. We noted how the elapsed time for adult criminal court trials has been increasing, as well as custodial remand populations, even as the overall sentenced populations have decreased. One reason that sentences may be becoming shorter is to reflect the longer time spent in custodial remand before cases are completed. Some media reports have also led to speculation that judges may be starting to discount sentences at rates much higher that was typical in the past. This appears to be a reaction both to the longer average time some offenders are spending under custodial remand, as well as the poor conditions found in some remand centres. However, it is difficult to quantify the overall impact of these events on sentence lengths. The continued expansion and improvements to the adult criminal court and correctional services information capacities, as planned by the CCJS, will no doubt assist future studies. 35
REFERENCES A Description of Bail Verification and Bail Supervision Programs in Western Canada. (1986) Canadian Centre for Justice Statistics, Statistics Canada. Adult Correctional Services in Canada, 2000/01. (2002) Canadian Centre for Justice Statistics, Statistics Canada Boe, R. Nafekh, M. Vuong, B. Sinclair, R. and Cousineau, C. The Changing Profile of the Federal Inmate Population: 1997 and 2002. (2003) Research Branch, Correctional Service of Canada, Report R-132. Engler, C. and Crowe, S. Alternative Measures in Canada, 1998-99. (2002) Canadian Centre for Justice Statistics, Statistics Canada. Gilmour, H. The Use of Custodial Remand in Canada, 1987/88 to 1997/98. (1999) Canadian Centre for Justice Statistics, Statistics Canada. Highlights of the Conditional Sentencing Special Study. (2002) Bulletin of the Canadian Centre for Justice Statistics, Statistics Canada (June). Kowalski, M. Alternative Measures for Youth in Canada. (1999) Canadian Centre for Justice Statistics, Statistics Canada. MacKillop, B and Trevethan, S. Diversion/Alternative Measures for Youth and Adults. (1997) United Nations Global Report on Crime. McCutcheon, Adriana Ciccone. Adult Criminal Court Statistics, 2002/03. (2003) Canadian Centre for Justice Statistics, Statistics Canada. Roberts, J. Stalans, L. Indermaur, D. and Hough, M. Penal Populism and Public Opinion, (2003) Oxford University Press Robinson, P. Adult Criminal Court Statistics, 2001/02. (2003) Canadian Centre for Justice Statistics, Statistics Canada. Savoie, J. Crime in Canada, 2001. (2002) Canadian Centre for Justice Statistics, Statistics Canada. 36
APPENDIX A: SENTENCE LENGTHS IN 8-JURISDICTIONS Newfoundland and Labrador
Year 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01 2001/02
Total Found Guilty
% With a
% Of Prison Sentences
Prison
Sentence
1 month or >1 to 3 months
>3 to 6
less
months
>6 to 12 months
>12 to <24 24 months months or more
2,891
39.4%
61.0%
21.5%
10.5%
3.7%
1.4%
1.8%
4,242
39.3%
59.4%
21.7%
11.7%
3.7%
0.7%
2.8%
4,213
37.8%
58.4%
19.4%
13.4%
5.1%
1.6%
2.1%
3,691
37.3%
56.9%
22.4%
11.1%
5.7%
0.9%
2.9%
3,809
34.9%
52.3%
23.7%
13.8%
5.7%
1.7%
2.9%
3,304
35.3%
57.1%
21.7%
11.5%
4.8%
1.3%
3.7%
3,337
35.7%
54.1%
24.9%
12.5%
4.1%
1.6%
2.8%
3,421
37.0%
51.9%
26.0%
13.5%
4.3%
1.9%
2.4%
Prince Edward Island
Year
Total Found Guilty
% With a
% Of Prison Sentences
Prison
Sentence
1 month or >1 to 3 months
>3 to 6
less
months
>6 to 12 months
>12 to <24 24 months months or more
1994/95 1,004
54.6%
64.6%
17.0%
6.9%
3.8%
4.0%
3.6%
1995/96 987
58.3% 77.4%
12.0%
4.3%
2.3%
3.1%
0.9%
1996/97 1,080
59.7%
75.2%
16.6%
2.9%
2.2%
1.4%
1.7%
1997/98 1,132
67.7%
70.5%
14.2%
6.8%
2.9%
2.1%
3.5%
1998/99 914
68.4% 70.7%
17.8%
5.0%
1.1%
1.4%
4.0%
1999/00 903
65.8% 71.5%
17.3%
5.9%
1.7%
1.5%
2.0%
2000/01 829
64.4% 73.2%
18.2%
3.9%
1.7%
0.9%
2.1%
2001/02 922
63.6% 71.0%
20.8%
4.9%
1.7%
0.5%
1.0%
37
Nova Scotia
Year
Total Found Guilty
% With a
% Of Prison Sentences
Prison
Sentence
1 month or >1 to 3 months
>3 to 6
less
months
>6 to 12 months
>12 to <24 24 months months or more
1994/95 7,421
22.2%
42.5%
26.2%
13.2% 7.2%
2.7%
8.2%
1995/96 8,045
24.7%
51.2%
26.2%
10.6% 5.3%
2.0%
4.7%
1996/97 7,064
26.0%
51.4%
26.4%
10.1% 5.3%
2.0%
4.7%
1997/98 6,517
26.8%
52.3%
24.3%
11.4% 5.4%
1.8%
4.7%
1998/99 6,378
27.3%
55.1%
21.7%
10.7% 5.7%
1.6%
5.2%
1999/00 6,163
28.2%
53.7%
23.3%
11.7% 4.7%
1.7%
5.0%
2000/01 5,540
30.5%
55.0%
22.9%
10.0% 4.8%
2.3%
5.0%
2001/02 5,289
28.8%
53.8%
21.1%
11.6% 4.5%
2.3%
6.8%
Quebec
Year
Total Found Guilty
With a
% Of Prison Sentences
Prison
Sentence
1 month or >1 to 3 months
>3 to 6
less
months
>6 to 12 months
>12 to <24 24 months months or more
1994/95 37,458 31.0% 42.1%
25.6%
12.9% 9.0%
4.8%
5.6%
1995/96 40,932 33.2% 37.6%
25.5%
13.5% 10.6%
5.7%
7.1%
1996/97 38,524 32.3% 35.3%
23.6%
15.5% 11.9%
6.1%
7.5%
1997/98 35,737 31.6% 33.3%
23.5%
16.7% 12.6%
7.2%
6.6%
1998/99 33,480 31.9% 31.7%
21.6%
17.2% 13.5%
7.6%
8.4%
1999/00 34,487 33.3% 30.6%
21.8%
17.9% 14.1%
8.0%
7.6%
2000/01 33,511 34.8% 31.8%
20.3%
18.0% 14.3%
8.6%
7.1%
2001/02 34,700 32.4% 32.7%
20.6%
17.1% 14.2%
8.3%
7.1%
38
Ontario
Year
Total Found Guilty
% With a
% Of Prison Sentences
Prison
Sentence
1 month or >1 to 3 months
>3 to 6
less
months
>6 to 12 months
>12 to <24 24 months months or more
1994/95 92,345 42.6% 57.9%
25.2%
9.1%
4.0%
1.9%
1.8%
1995/96 88,151 41.6% 56.5%
26.4%
9.4%
3.8%
1.9%
1.9%
1996/97 89,250 42.9% 56.2%
26.5%
9.7%
4.0%
2.0%
1.6%
1997/98 89,288 41.5% 55.6%
27.1%
9.6%
3.9%
1.9%
1.9%
1998/99 84,002 43.0% 55.5%
27.2%
9.7%
3.9%
1.9%
1.8%
1999/00 79,811 42.0% 56.3%
27.3%
9.2%
3.5%
1.6%
2.1%
2000/01 80,695 42.8% 57.7%
26.5%
8.9%
3.4%
1.6%
1.9%
2001/02 84,207 40.3% 58.9%
25.8%
8.6%
3.2%
1.4%
2.0%
Saskatchewan
Year
Total Found Guilty
With a
% Of Prison Sentences
Prison
Sentence
1 month or >1 to 3 months
>3 to 6
less
months
>6 to 12 months
>12 to <24 24 months months or more
1994/95 15,178 30.0% 36.0%
28.7%
19.0% 9.7%
4.0%
2.5%
1995/96 14,561 28.2% 35.9%
28.9%
19.3% 9.6%
3.9%
2.4%
1996/97 13,646 28.8% 33.4%
28.0%
21.0% 9.7%
5.0%
2.9%
1997/98 12,425 28.4% 34.5%
27.2%
20.1% 9.9%
5.0%
3.3%
1998/99 12,898 28.7% 34.7%
28.5%
19.4% 9.6%
4.6%
3.2%
1999/00 11,931 26.7% 38.5%
27.3%
17.8% 8.5%
5.3%
2.6%
2000/01 11,847 25.8% 37.1%
25.6%
20.3% 8.5%
5.7%
2.8%
2001/02 12,724 26.0% 37.8%
26.1%
19.3% 8.3%
4.8%
3.7%
39
Alberta
Year
Total Found Guilty
With a
% Of Prison Sentences
Prison
Sentence
1 month or >1 to 3 months
>3 to 6
less
months
>6 to 12 months
>12 to <24 24 months months or more
1994/95 32,402 30.9% 45.0%
27.1%
15.1% 6.3%
2.9%
3.7%
1995/96 29,064 32.1% 46.5%
27.1%
13.4% 6.4%
2.9%
3.7%
1996/97 28,105 30.7% 49.2%
26.1%
12.5% 5.7%
2.4%
4.1%
1997/98 27,046 30.4% 49.1%
25.2%
12.5% 5.9%
2.6%
4.6%
1998/99 28,758 33.6% 47.2%
26.3%
11.9% 5.9%
2.6%
6.1%
1999/00 28,403 32.0% 50.6%
24.5%
11.7% 4.9%
2.2%
6.2%
2000/01 29,593 32.3% 54.4%
22.2%
10.5% 4.7%
2.3%
5.9%
2001/02 29,913 33.9% 58.4%
22.0%
9.1%
4.0%
1.6%
4.8%
Yukon
Year
Total Found Guilty
% With a
% Of Prison Sentences
Prison
Sentence
1 month or >1 to 3 months
>3 to 6
less
months
>6 to 12 months
>12 to <24 24 months months or more
1994/95 770
43.2% 56.2%
26.1%
10.8% 4.2%
1.2%
1.5%
1995/96 765
49.7% 51.8%
26.8%
12.4% 6.3%
1.8%
0.8%
1996/97 736
46.2% 52.1%
26.2%
12.1% 7.4%
0.9%
1.5%
1997/98 767
49.2% 54.9%
23.9%
15.1% 4.0%
1.6%
0.5%
1998/99 712
53.9% 55.7%
27.3%
9.6%
3.6%
2.9%
0.8%
1999/00 628
38.1% 59.0%
30.5%
5.4%
2.1%
1.7%
1.3%
2000/01 465
35.3% 59.8%
28.0%
5.5%
2.4%
1.2%
3.0%
2001/02 511
38.7% 54.0%
28.3%
6.6%
5.6%
3.5%
2.0%
40

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