Conditional Imprisonment: A Troubled Past and an Uncertain Future

• Author: Julian Roberts and David Cole
• Pages: 71-95



CHAPTER FOUR

Conditional Imprisonment:

A Troubled Past and an Uncertain

Future

Julian Roberts and David Cole*

Every complete deprivation of the liberty of movement, or limitation

within certain boundaries is an imprisonment, whether it be conne-

ment in a common prison or in a private house.

When most Canadians think about imprisonment, images of prisons

come to mind: Millhaven Institution, Stony Mountain Institution, or

Kingston Penitentiary. is conception of imprisonment fails to cap-

ture the dierent ways in which a term of custody may be discharged

or the many eects that a prison sentence may have upon the oender.

In Canada today, approximately half the individuals ordered to serve a

prison sentence are discharging part or all of the time in the commun-

ity. is chapter explores the most controversial form of imprisonment:

one where the entire sentence is served at home unless the oender

violates conditions.

Most oenders sentenced to a provincial-length term of imprison-

ment enter a custodial facility (provincial reformatory), where they

* Our thanks to Andrew Reid for comments on a previous draft.

 Thus spake Blackstone in ; Henry Winthrop Ballantine, Blackstone’s Commentaries

(Chicago: American Law, General Studies, ) vol  at .

 |   

remain until released on temporary absence or parole, or their sentence

ends. However, some oenders who receive a sentence of imprison-

ment are permitted to serve their sentence while still living in the

community, subject to a set of potentially restrictive conditions. ese

individuals are serving a conditional sentence of imprisonment (here-

after, CSI). As the name implies then, the CSI is not an alternative to

custody but rather a way in which a sentence of imprisonment may be

served. ere are obvious parallels between CSI oenders and oend-

ers on parole who are also serving a prison sentence in the community,

under supervision and subject to conditions. Unjustied breach (or

even an anticipated breach) of these conditions should normally lead

to imprisonment for parolees and conditional sentence oenders alike.

is chapter explores this novel sanction introduced in  by Bill C-.

A. MANY FORMS OF IMPRISONMENT

Initially conceived as continuous sequestration from open society,

imprisonment around the world now comes in several forms. Terms

of custody may be served continuously, wholly or partly intermittently

(usually on weekends), wholly or partly in the community, or partially

or fully suspended. e manifold versions of imprisonment provide

courts with greater exibility to accommodate the wide variation in the

circumstances of individual oenders — which cannot all be addressed

by a single mode of custody. Many jurisdictions have now created a

community-based form of imprisonment. Other examples include the

Home Detention Curfew in New Zealand and the Community Cor-

rection Order in the Australian state of Victoria.

ese “community custody” sanctions vary widely but share a

common purpose: to convey a prison-like degree of penal censure and

 An Act to amend the Criminal Code (Sentencing) and other Acts in consequence thereof,

st Sess, th Parl (proclaimed in force  September ), SC , c  [Bill C-].

 For details, see New Zealand, Department of Corrections/Ara Poutama Aotearoa,

Home Detention and Post Detention Conditions, online: www.corrections.govt.nz/

working_with_oenders/community_sentences/sentences_and_orders/home_

detention_and_post_detention_conditions.html.

 For discussion of this sanction, see Boulton v The Queen, [] VSCA  ( Decem-

ber ).