Redress Risk Management (post until May 31/19)

Sentencing vs conditional release: each serves a different purpose

Conditional releases are part of the way Canada’s justice system reintegrates offenders into the community in a manner that still protects society, Hamilton criminal lawyer Jeffrey Manishen tells the Bill Kelly Show.

Manishen, a partner with Ross & McBride LLP, comments on the issue following news reports that the man who was convicted in connection with an impaired driving crash that killed three children and their grandfather two years ago may be applying soon for a temporary release from prison.

He says it’s important to point out the difference between the sentencing process and the conditional release program.

“Sentencing is where the judge is going to determine what is a just and appropriate sanction for the conduct,” he says. “Do you consider it to be punishment? Many do.”

Manishen says it’s meant to take into consideration a host of different factors, including: expressing society’s abhorrence for the conduct in question, sending a message to potential like-minded offenders as well as the convicted individual not to engage in such behaviour, and protecting the public. The offender’s prospect of rehabilitation is also considered, he adds.

The judge also looks at aggravating circumstances in the crime when deciding to increase the sentence and mitigating factors to reduce it, Manishen says.

The judge "has to find a balance, considering other cases with similar circumstances,” he says. 

Victim impact statements are also part of the evidence on sentencing, Manishen adds.

“And the judge, in this case, came up with 10 years. That’s the punishment. That’s the sanction,” he says. 

Manishen says conditional releases such as parole and temporary absences are not meant to be punitive. They focus on the determination of what risk the offender would pose to society if he or she is permitted to return to the community before serving the full sentence, he says. 

It’s a very different issue than the decision on sentencing, Manishen says.

“It’s important to remember that when somebody is released on parole, that parole is potentially suspendable and revokable if the person breaks the terms of release and [they] could then be reincarcerated,” he says. 

Temporary absence passes from prison, escorted or unescorted, are for specific periods of time, even as short as a day or a weekend, to allow the offender to return to the community on strict, mandatory terms, and then go back to the institution, Manishen says. 

Offenders who have completed one-sixth of their sentence are eligible for temporary passes from prison.  Those who have finished a third can apply for parole, he explains.

The idea is to reintegrate the individual into the community, Manishen says.



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