SUPREME
COURT OF CANADA
Between:
Timothy
Middleton
Appellant
and
Her
Majesty The Queen
Respondent
Coram: McLachlin
C.J. and Binnie, LeBel, Fish, Charron, Rothstein and Cromwell JJ.
Reasons
for Judgment:
(paras. 1 to 54)
Concurring
Reasons:
(paras. 55 to 60)
Reasons
Dissenting in Part:
(paras. 61 to 113)
|
Fish J. (McLachlin C.J. and LeBel,
Charron and Rothstein JJ. concurring)
Binnie J.
Cromwell J.
|
______________________________
R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674
Timothy Middleton Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Middleton
Neutral citation: 2009 SCC 21.
File No.: 32138.
2009: January 20; 2009: May 22.
Present: McLachlin C.J. and Binnie, LeBel, Fish,
Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal
for ontario
Criminal law — Sentencing — Intermittent sentences —
Conditional sentences — Accused convicted of assault causing bodily harm,
uttering a death threat and pointing a firearm and receiving 90‑day
sentence of imprisonment to be served intermittently plus two concurrent 18‑month
conditional sentences to be served in community plus probation — Whether
imposition of conditional sentence of more than 90 days renders
intermittent sentence illegal — Whether intermittent sentence must be served on
consecutive days — Whether conditional sentence is “sentence of imprisonment”
within meaning of s. 732(1) of Criminal Code — Criminal Code, R.S.C. 1985,
c. C‑46, s. 732(1) , (3) — Corrections and Conditional Release
Act, S.C. 1992, c. 20, s. 139 .
The accused was sentenced to 90 days’ imprisonment,
to be served intermittently, for an assault causing bodily harm committed in
September 2004. At the same hearing, he was immediately thereafter
sentenced to two concurrent 18‑month conditional sentences for uttering a
death threat and pointing a firearm in February 2005. The trial judge
also ordered three years’ probation. The Court of Appeal held that the
imposition of the conditional sentences in addition to the intermittent
sentence did not render the intermittent sentence unlawful in virtue of s. 732(1)
of the Criminal Code . It held also that because the intermittent
sentence preceded the conditional sentences, and the trial judge did not order
otherwise, s. 732(3) of the Code required the accused to serve the
90‑day sentence on consecutive days. The balance of the sentence
remained unchanged.
Held (Cromwell J.
dissenting in part): The appeal should be allowed and the sentences imposed by
the trial judge affirmed.
Per McLachlin C.J. and
LeBel, Fish, Charron and Rothstein JJ.: Imposing a conditional sentence of
more than 90 days cannot render illegal an unexpired intermittent sentence
imposed on the same offender for a different offence. It is apparent from the
words “confinement” and “prison” in s. 732(1) that this provision
contemplates only custodial sentences of imprisonment. Conditional sentences
are, by definition, meant to be served in the community, not in prisons. To
conclude that they are sentences of imprisonment within the meaning of
s. 732(1) is inconsistent not only with the plain wording and a purposive
and contextual interpretation of the provision, but also with the express terms
adopted by Parliament in providing for intermittent sentences and with the
distinct purposes of conditional and intermittent sentences. Such a conclusion
would, as well, disregard the valid sentencing objectives of the trial judge in
this case and would unduly limit the discretion of other trial judges to render
similarly fit sentences where they conclude that a custodial sentence is
required. Moreover, “imprisonment” does not bear a uniform meaning for all
purposes of the Criminal Code . In several instances, as in s. 732 ,
“sentence of imprisonment” or “term of imprisonment” necessarily contemplate
incarceration in a manner that cannot include conditional sentences. As well,
a harmonious reading of the English and French versions of s. 732
clarifies that it contemplates only custodial sentences. [6] [8] [10‑11]
[14] [27]
Section 139 of the Corrections and Conditional
Release Act does not contemplate conditional sentences and has no
application to intermittent sentences. It is found within Part II of the Act
which does not apply to conditional sentences. Moreover, s. 99(1) of the
Act excludes a person who receives a conditional sentence while serving only an
intermittent sentence from the definition of “offender” for the purposes of
Part II. A purposive interpretation of s. 139(1) also militates
against its application to conditional sentences. Parliament enacted
s. 139 to simplify the calculation of multiple custodial sentences in
order to facilitate the administration of parole and statutory remission, an
object not engaged by conditional sentences. [7] [29‑34]
Although the trial judge pronounced the intermittent
sentence before the conditional sentences, as a matter of principle, nothing in
this case should turn on the order in which the sentences were pronounced. The
accused is not required by virtue of s. 732(3) of the Code to serve
his intermittent sentence on consecutive days because a purposive and
contextual reading of the expression “sentence of imprisonment” in
s. 732(3) makes it clear that it does not contemplate conditional
sentences. [36] [39-40]
While chaining intermittent sentences beyond the 90‑day
limit defeats the object of s. 732(1) and the purpose of intermittent
sentences, combining intermittent and conditional sentences can serve the
purposes of both types of sentences. This case illustrates how intermittent
and conditional sentences can be effectively combined to take appropriate
advantage of their complementary purposes. [45‑47] [53]
Per Binnie J.: It is
unnecessary to resolve the controversy over the scope and application of
s. 139 of the Corrections and Conditional Release Act . The narrow
issue on this appeal can and ought to be decided narrowly. The availability of
an intermittent sentence in this case depends on s. 732(1) of the Criminal
Code . By its terms s. 732(1) presupposes that a sentence within its
purview can be served intermittently. Although conditional sentences
are sentences of imprisonment without incarceration, they do not lend
themselves to being served intermittently. On the face of it, therefore,
s. 732(1) has no application to, and does not bar, the conditional
sentences in this case. The “sentence of imprisonment” referred to in the
opening words of s. 732(1) is the same “sentence” as “the sentence”
mentioned elsewhere in the subsection. If the later references do not (because
they cannot) include a conditional sentence, then the opening reference also
excludes conditional sentences. There is no need to attribute different
meanings to the same word in the same subsection. Since textually and
contextually s. 732(1) does not extend to conditional sentences, the issue
of a merger of the sentences in this case to form a single period of
imprisonment does not arise. Accordingly the Corrections and Conditional
Release Act has no application. The conditional sentences imposed by the
trial judge were lawful. [55‑59]
Per Cromwell J.
(dissenting in part): The intermittent sentence was illegal and should be set
aside. The parties agree that if a conditional sentence is a "sentence of
imprisonment" in s. 732(1) , then an intermittent sentence is not available
in this case because, as a result of s. 139 of the Corrections and
Conditional Release Act , the sentences in this case merge to form a single
period of imprisonment that exceeds 90 days. The words “sentence of
imprisonment” include a conditional sentence of imprisonment. The power in
s. 732(1) to order that a sentence of imprisonment be served
intermittently is limited to sentences of imprisonment of 90 days or
less. Accepting the parties’ premise, as a result of s. 732(1) of the Criminal
Code , a 90‑day portion of the merged sentence cannot be served
intermittently. [61] [63] [76] [102‑103]
The question of whether a sentence is a sentence of
imprisonment is distinct from the question of how that sentence is to be
served. While imprisonment generally results from a sentence of imprisonment,
not all sentences of imprisonment result in the offender being imprisoned while
serving that sentence. A conditional sentence is a sentence of imprisonment
which the court directs to be served in the community. The manner in which the
sentence is served does not alter its nature as a sentence of imprisonment.
This distinction is important for the interpretation of s. 732(1) . This
provision is engaged only if “the court imposes a sentence of imprisonment of
ninety days or less”. These words refer to the nature of the sentence. The Criminal
Code , however, treats the conditional aspect of a conditional sentence,
that it be served in the community, as relating to the manner in which the
sentence of imprisonment is to be served. Where Parliament intends that the
words “sentence of imprisonment” and equivalent expressions exclude conditional
sentences, it uses language placed in a context which makes this clear. There
is no such contrary indication in s. 732 . Nothing in the text or context
of s. 732(1) would justify a departure from the grammatical and ordinary
meaning of the words “sentence of imprisonment” in that section. [70‑71]
[73‑74] [80] [101]
The Court of Appeal erred not only in holding that the
intermittent sentence was legal, but also in concluding that it had to be
served on consecutive days by virtue of s. 732(3) of the Code. The
Court of Appeal’s interpretation of s. 732(3) gives inconsistent meanings
to the words “sentence of imprisonment” within s. 732. It also makes too
much turn on the order in which sentences are imposed. To have the application
of the section turn on the many chronological possibilities that may occur in
the sentencing process would make its operation arbitrary and impractical.
Finally, this approach thwarts the clear intent of the sentencing judge.
Where, as here, a sentencing judge imposes an intermittent sentence and, as
part of the same sentencing hearing, imposes another sentence of imprisonment
that can legally be combined with it, it should be inferred that the sentencing
judge has “otherwise order[ed]” and that the intermittent sentence is to be
served intermittently. [105] [108‑110]
Cases Cited
By Fish J.
Considered: R. v.
Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v.
Fletcher (1982), 2 C.C.C. (3d) 221; R. v. Aubin (1992), 72 C.C.C.
(3d) 189; R. v. McLeod, [1993] Y.J. No. 17 (QL); R. v. Drost
(1996), 172 N.B.R. (2d) 67; R. v. Frechette, 2001 MBCA 66, 154 C.C.C.
(3d) 191; R. v. Squibb, 2006 NLCA 9, 253 Nfld. & P.E.I.R. 285; R.
v. Robert, 2007 QCCA 515, [2007] Q.J. No. 2821 (QL); R. v. Power
(2003), 176 C.C.C. (3d) 209; referred to: Thomson v. Canada (Deputy
Minister of Agriculture), [1992] 1 S.C.R. 385; R. v. Carrignan
(2003), 172 C.C.C. (3d) 1; R. v. Vajdl, 2004 MBQB 167, 186 Man. R. (2d)
149; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v.
Lyver, 2007 ABCA 369, 229 C.C.C. (3d) 535.
By Cromwell J. (dissenting in part)
R. v. Proulx, 2000 SCC 5,
[2000] 1 S.C.R. 61; R. v. Fletcher (1982), 2 C.C.C. (3d) 221; R. v.
Aubin (1992), 72 C.C.C. (3d) 189; R. v. McLeod, [1993] Y.J.
No. 17 (QL); R. v. Drost (1996), 172 N.B.R. (2d) 67; R. v.
Frechette, 2001 MBCA 66, 154 C.C.C. (3d) 191; R. v. Squibb, 2006
NLCA 9, 253 Nfld. & P.E.I.R. 285; R. v. Robert, 2007 QCCA 515,
[2007] Q.J. No. 2821 (QL); Bell ExpressVu Limited Partnership v. Rex,
2002 SCC 42, [2002] 2 S.C.R. 559; Rizzo & Rizzo Shoes Ltd. (Re),
[1998] 1 S.C.R. 27; R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530;
Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; R.
v. Power (2003), 176 C.C.C. (3d) 209.
Statutes and Regulations Cited
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 99(1) “offender”, 120.2(1), 127(1),
128(1), 130(3.2), (3.3), 139.
Criminal Code, R.S.C.
1985, c. C‑46, ss. 718.2 (e), 719(4) , (5) , 731 , 732 , 742 ,
742.1 , 742.6 , 742.7 , 743.3 .
Parole Act, R.S.C.
1970, c. P‑2, s. 14(1).
Parole Act, R.S.C. 1985, c. P‑2, s. 2 “inmate”.
Authors Cited
Canada. Standing Senate Committee
on Legal and Constitutional Affairs. Proceedings of the Standing Senate
Committee on Legal and Constitutional Affairs, Issue No. 68,
1st Sess., 35th Parl., November 30, 1995, pp. 68:4, 68:6.
APPEAL from a judgment of the Ontario Court of Appeal
(Weiler, Gillese and LaForme JJ.A.), 2007 ONCA 538, 227 O.A.C. 59, [2007] O.J.
No. 2900 (QL), 2007 CarswellOnt 4722, varying a sentence imposed by Waugh
J., 2006 CarswellOnt 9388. Appeal allowed, Cromwell J. dissenting in part.
Gregory Lafontaine
and Vincenzo Rondinelli, for the appellant.
Andrew Cappell and
Alexandra Campbell, for the respondent.
The judgment of McLachlin C.J. and LeBel, Fish, Charron
and Rothstein JJ. was delivered by
Fish
J. —
I
[1]
The appellant, Timothy Middleton, was convicted at trial for having
committed an assault causing bodily harm to his partner at the time, Lisa
Dubreuil. For that offence, he was sentenced to 90 days’ imprisonment, to be
served intermittently. Mr. Middleton was convicted as well for having uttered
a death threat and for pointing a firearm some five months after the assault.
And for those offences, he received 18-month conditional sentences of
imprisonment, to be served concurrently, followed by probation for the ensuing
three years.
[2]
It is conceded that all three sentences were legal in themselves. It is
conceded as well that they were carefully crafted by the trial judge in
compliance with the sentencing principles and the correctional objectives
applicable in the circumstances of this case. Neither the appellant nor the
respondent has drawn to our attention a single provision of the Criminal
Code, R.S.C. 1985, c. C-46 , that prohibited either the intermittent
sentence or the concurrent conditional sentences when each was imposed. Nor
has our attention been drawn to a single judgment by any Canadian court
precluding the combination of sentences imposed by the trial judge in this
case.
[3]
Justice Cromwell nonetheless finds that the intermittent sentence was
rendered illegal by the conditional sentences in light of a sentence
calculation provision set out in a different statute for purposes that, as we
shall presently see, have no application here.
[4]
My colleague’s reasons may be briefly summarized this way. Intermittent
sentences are governed by s. 732 of the Criminal Code . In virtue of s.
732(1) , the court may order that a sentence of imprisonment be served
intermittently where the term imposed does not exceed 90 days. Conditional
sentences are sentences of imprisonment. Section 139 of the Corrections and
Conditional Release Act, S.C. 1992, c. 20 (“CCRA ”), requires that
the 90-day intermittent sentence and the 18-month conditional sentences imposed
in this case be “merged” — or amalgamated — to form a single sentence of 18
months’ duration. Since this merged sentence exceeds the 90-day maximum
permitted by s. 732(1) , the intermittent sentence imposed by the trial judge
was retrospectively rendered illegal by the subsequent imposition of the
conditional sentences, though the conditional sentences were themselves both
legal and fit.
[5]
It will immediately be recognized that the result proposed by Justice
Cromwell would only be warranted if both of its essential premises are correct:
first, that a conditional sentence is a sentence of imprisonment within the
meaning of s. 732(1) ; and second, that s. 139 of the CCRA requires that
the intermittent and conditional sentences imposed by the trial judge be
treated, for the purposes of s. 732(1) , as a single sentence of imprisonment.
[6]
In my respectful view, neither proposition withstands scrutiny. To hold
that a conditional sentence is a sentence of imprisonment within the meaning of
s. 732(1) of the Criminal Code and s. 139 of the CCRA is to
disregard the plain wording of the provisions, their legislative purposes, and
the nature and object of conditional sentences. It would disregard as well the
valid sentencing objectives of the trial judge in this case and would
unnecessarily, in the future, deprive judges of their ability to render
similarly fit sentences where they conclude that a custodial sentence is
required.
[7]
For the reasons that follow, I have concluded that conditional sentences
are not contemplated by either s. 732(1) of the Criminal Code or s. 139
of the CCRA , and that s. 139 has no application to the intermittent
sentence imposed in this case.
II
[8]
The decisive question on this appeal is whether the imposition of a
conditional sentence of more than 90 days renders illegal an unexpired
intermittent sentence imposed on the same offender but for a different offence.
As I have already indicated, that question can only be answered in the
affirmative if we conclude, first, that a conditional sentence is a “sentence
of imprisonment” within the meaning of s. 732(1) of the Criminal Code ;
and second, that s. 139 of the CCRA applies to both conditional and
intermittent sentences.
[9]
Section 732(1) reads:
732. (1) Where the court imposes a sentence of imprisonment of
ninety days or less on an offender convicted of an offence, whether in default
of payment of a fine or otherwise, the court may, having regard to the age and
character of the offender, the nature of the offence and the circumstances
surrounding its commission, and the availability of appropriate accommodation
to ensure compliance with the sentence, order
(a) that
the sentence be served intermittently at such times as are specified in the
order; and
(b) that the offender comply with the conditions prescribed in
a probation order when not in confinement during the period that the sentence
is being served and, if the court so orders, on release from prison after
completing the intermittent sentence.
[10] It is
apparent from the words “confinement” and “prison” that s. 732(1) contemplates
custodial sentences of imprisonment and not conditional sentences of
imprisonment, which are served in the community. In my view, this textual
consideration is alone sufficient to warrant the conclusion that conditional
sentences are not “sentences of imprisonment” within the meaning of s. 732(1) .
[11] In
arriving at an opposite conclusion, Justice Cromwell relies on the principle of
statutory interpretation which favours giving a word or phrase “the same
interpretation or meaning whenever it appears in an act”, unless “the contrary
is clearly indicated by the context” (Thomson v. Canada (Deputy Minister of
Agriculture), [1992] 1 S.C.R. 385, at p. 400). Applying this same rule of
interpretation, it seems to me plain that a conditional sentence is not
a “sentence of imprisonment” within the meaning of s. 732(1) . As mentioned
at the outset, s. 732(1) (b) contemplates sentences that are served “in
confinement” and probation orders “on release from prison after completing the
intermittent sentence”. Conditional sentences are, by definition, meant to be
served in the community and not in prisons. To conclude that they are
sentences of imprisonment within the meaning of s. 732(1) is thus inconsistent
with a purposive and contextual interpretation of the provision, and also the
express terms adopted by Parliament in providing for intermittent sentences.
[12] In my
respectful view, we cannot reasonably hold that a conditional sentence is a
sentence of imprisonment for some purposes under s. 732(1) (such as
determining an offender’s eligibility for an intermittent sentence), but not
for others (such as permitting the intermittent service of a conditional
sentence). And without straining the plain language of s. 732(1) , we cannot
reasonably find that a conditional sentence is a sentence of imprisonment for
all purposes of s. 732 , as urged by the appellant.
[13] To
conclude that conditional sentences are sentences of imprisonment within the
meaning of s. 732(1) is inconsistent as well with the distinct and different
purposes of conditional sentences on the one hand, and intermittent sentences
on the other. Justice Cromwell has explained this well in relating why the
trial judge was moved by different reasons and different sentencing objectives
to impose conditional sentences for two offences and an intermittent sentence
for the other (notably at paras. 68, 69 and 111). It is thus hardly surprising
that no intermittent conditional sentences of imprisonment — an anomalous
notion at best — have been brought to our attention.
[14] Moreover,
contrary to the appellant’s submission, “imprisonment” in the phrases “sentence
of imprisonment” and “term of imprisonment” does not bear a uniform meaning for
all purposes of the Criminal Code . In several instances, these terms
necessarily contemplate incarceration. Section 718.2 (e), mentioned by
the parties, is hardly the sole example. Section 732(1) must itself be taken
as another since, as we have already seen, s. 732(1) refers explicitly to
“confinement during the period that the sentence is being served” and “release
from prison after completing the intermittent sentence”.
[15] Likewise,
s. 719(4) provides that “a term of imprisonment . . . commences . . . on the
day on which the convicted person is arrested and taken into custody under the
sentence”. Section 719(5) is framed in analogous terms. Manifestly,
conditional sentences of imprisonment are not terms of imprisonment within the
meaning of either provision. The same is true of s. 743.3 , which provides that
“[a] sentence of imprisonment shall be served in accordance with the enactments
and rules that govern the institution to which the prisoner is sentenced”.
Here again, a conditional sentence can hardly be characterized as a “sentence
of imprisonment” within the meaning of the provision.
[16] Section
742.7(1) is yet another instance where the Criminal Code speaks of
imprisonment in a manner that can hardly include conditional sentences. A
finding that it does would mean that a conditional sentence of imprisonment is
suspended if, while it is being served, the offender receives a second
conditional sentence of imprisonment. This can hardly be what Parliament
intended.
[17] On the
contrary, reading s. 742.7 as a whole, I think it obvious that Parliament has
drawn a clear and sharp distinction in that section between a conditional
sentence being served in the community, and a custodial period served for
breach of a conditional sentence order. Where an offender is ordered under s.
742.6 of the Code to serve all or part of an unexpired conditional
sentence in custody, this custodial period is explicitly treated in s. 742.7(3)
as imprisonment for the purposes of s. 139 of the CCRA ; the rest of the
conditional sentence, served in the community, is not. If s. 139 were intended
to apply to conditional sentences, s. 742.7(3) would be entirely superfluous.
At the very least, it is clear in this light that s. 139 applies to conditional
sentences only if they result in incarceration — and, even then, only to the
custodial period. The conditional sentences in this case involve no custody at
all.
[18] I am
of course aware that the Court, in holding that “imprisonment” in
s. 718.2 (e) signifies “incarceration”, referred to the difference
between the English and French versions of the Code: see R. v. Proulx,
2000 SCC 5, [2000] 1 S.C.R. 61, at para. 95. As pointed out at the hearing of
this appeal, however, a purposive and contextual reading of s. 718.2 (e)
would necessarily have arrived at the same result in the absence of the
mentioned linguistic inconsistency. As Justice Cromwell recognizes at para. 87
of his reasons, “reading the term ‘imprisonment’ in s. 718.2 (e) as
including a conditional sentence was exactly contrary to the obvious
legislative intent” of Parliament in creating conditional sentences as an alternative
to incarceration.
[19] And
there is no conflict at all between the English and French versions in any
of the other examples I have identified. Yet in every instance mentioned,
“imprisonment” necessarily refers to “incarceration” — and not to conditional
sentences served in the community.
III
[20] Justice
Cromwell has introduced in his reasons a “critical” distinction (at para. 70)
that appears to resurrect the Court’s rejection, with respect to conditional
sentences specifically, of a “two-step” sentencing process: Proulx.
Chief Justice Lamer, speaking for the Court, explained (at para. 52) that:
This two-step process does not correspond to the
reality of sentencing. In practice, the determination of a term of imprisonment
is necessarily intertwined with the decision of where the offender will serve
the sentence. A judge does not impose a fixed sentence of “x months” in the
abstract, without having in mind where that sentence will be served . . . .
Furthermore, when a conditional sentence is chosen, its duration will depend on
the type of conditions imposed. Therefore, the duration of the sentence
should not be determined separately from the determination of its venue.
[Emphasis added; citations omitted.]
[21] I have
four brief comments regarding Justice Cromwell’s proposed distinction between a
sentence and the manner in which it is to be served.
[22] First,
this distinction was never raised by either the appellant or the Crown, nor
considered by any court at any stage of the proceedings below. It is not
mentioned at all in the factum of either party or the authorities they have
cited, and was not referred to, explicitly or implicitly, by counsel before us
— or by the Court — at the hearing of the appeal.
[23] Second,
my colleague (at paras. 93 and 94) cites the reference to “the institution to
which the prisoner is sentenced” in s. 743.3 of the Code as an example
of qualifying language sufficient to indicate that “sentence of imprisonment”
in that provision refers to custodial sentences only. If this is correct, as I
believe it is, it can hardly be said that the references in s. 732(1) (b)
to “confinement” and “release from prison” do not qualify the term “sentence of
imprisonment” in precisely the same way. On my colleague’s own hypothesis, it
follows that Parliament has qualified the term “sentence of
imprisonment” in s. 732(1) to make clear that it contemplates custodial
sentences only.
[24] Third,
the proposed distinction is entirely academic in the context of this appeal,
where the issue is whether a conditional sentence is a sentence of imprisonment
within the meaning of s. 732(1) of the Criminal Code . Justice Cromwell
agrees that a conditional sentence cannot be served intermittently. He
nonetheless finds that “sentence of imprisonment” in s. 732(1) refers to both
custodial and conditional sentences. My colleague rests this conclusion on his
proposed distinction between a sentence of imprisonment and the manner in which
it is served. But this distinction hardly explains why “sentence of
imprisonment” in s. 732(1) — which concerns custodial sentences, since only
custodial sentences can be served intermittently — refers to both
custodial and conditional sentences.
[25] Finally,
it is evident from the terms of the provision and from its very nature that s.
732(1) permits — and governs — the imposition of custodial terms of
imprisonment, which alone may be served intermittently. This is apparent not
only from the words “confinement” and “prison” that appear in s. 732(1) , but
also from the English and French versions of s. 732(2), read harmoniously.
[26] Section
732(2) provides:
(2) An offender who is ordered to serve a sentence of imprisonment
intermittently may, on giving notice to the prosecutor, apply to the court that
imposed the sentence to allow it to be served on consecutive days.
(2) À la condition d’en informer au
préalable le poursuivant, le délinquant qui purge une peine à exécution
discontinue peut demander au tribunal qui a infligé la peine de lui permettre
de la purger de façon continue.
[27] As we
can see, “sentence of imprisonment” in the English version of s. 732(2)
appears in the French version as “une peine à exécution discontinue”.
Reading both versions together, it seems perfectly clear both from the terms
used and from its legislative purpose that s. 732(2) contemplates custodial
sentences only. Parliament can hardly have intended to provide that offenders
serving conditional sentences can choose to serve those sentences either
intermittently or on consecutive days.
[28] With
respect, I would thus reject the distinction invoked by Justice Cromwell and
would instead resolve the question that concerns us here on the textual,
contextual and purposive basis outlined in these reasons. Interpreting s.
732(1) this way better conforms to the sentencing purposes and correctional
objectives for which Parliament separately established intermittent and conditional
sentences.
IV
[29] This
brings me to s. 139 of the CCRA , considered purposively and in the
context of this case. Section 139 is found in Part II of the Act, which deals
with “Conditional Release, Detention and Long-Term Supervision”. None of
these matters have any application at all to conditional sentences.
Offenders subject to a conditional sentence order are not eligible for parole: Proulx,
at para. 42. Nor are they in “detention” or under “long-term supervision”
within the meaning of the CCRA .
[30] Moreover,
when he received his conditional sentences, the appellant was “a person whose
only sentence [was] a sentence being served intermittently pursuant to section
732 of the Criminal Code ”. Section 99(1) of the CCRA excludes
such persons from the definition of “offender” for the purposes of Part II of
the Act — which of course contains s. 139(1) . This alone, I should think, is
sufficient to demonstrate that s. 139 of the CCRA is of no assistance
whatever to the appellant in this case.
[31] It
might be thought that s. 99(1) does not apply to s. 139(1), since s. 139(1)
refers to a “person” serving a sentence and does not use the word “offender”.
In virtue of s. 99(1) , however, a “person” serving a sentence is an
“offender” — that is what “offender” means. This is evident from the use of
the term “offender” in ss. 120.2(1) , 130(3.2) and 130(3.3) of the CCRA to
refer to the “person” to whom s. 139(1) applies. And it is not without
interest that s. 732 of the Criminal Code uses the words “person” and
“offender” interchangeably.
[32] Quite
apart from this exclusionary definition of offender, a purposive interpretation
of s. 139(1) also militates against its application here. The object of the
provision was well explained by the Director General of Corrections in the
Department of the Solicitor General of Canada when the current s. 139(1) was
being considered by the Standing Senate Committee on Legal and Constitutional
Affairs:
So‑called “sentence calculation” is a bit of a misnomer. It
refers to the way we calculate parole eligibility dates rather than
sentences themselves, something which we found necessary given the multiple
sentences that form an infinite combination of sentences, both concurrent and
consecutive.
. . .
To deal with the complexity of sentences and the calculation of
eligibility dates that allow us to administer sentences in a rational way, the
technique of sentence‑merging was developed to establish a single set
of eligibility dates on the total prison term comprised of however many
sentences. To do that, the Corrections and Conditional Release Act , or CCRA ,
provides for all sentences to be merged into a single term.
(Proceedings of the Standing Senate Committee on Legal and
Constitutional Affairs, Issue No. 68, 1st Sess., 35th Parl., November 30,
1995, at pp. 68:4 and 68:6 (emphasis added))
[33] In
this regard, reference may be had as well to R. v. Carrignan (2003), 172
C.C.C. (3d) 1 (Ont. C.A.), where, after considering the purpose and legislative
history of s. 139 of the CCRA and its predecessors, Cronk J.A. (Catzman
J.A. concurring) concluded:
Accordingly, the historical antecedents of s. 139 of
the CCRA confirm, as urged by the amicus curiae in this case,
that the device of sentence merger was intended to facilitate sentence
calculation for sentence administration purposes. As emphasized by the then
Solicitor General of Canada in 1995, it was not intended to “change the way
consecutive and concurrent sentences work together”. [para. 36]
And again:
In my view, the combined effect of ss. 139(1) and (2) of the CCRA in
connection with consecutive sentences is to ensure, for parole eligibility
purposes, that the term of imprisonment of each consecutive sentence is
totalled and parole eligibility is calculated based on the total term of the
merged sentence. The intent and ambit of the sections are directed to that
outcome, and to no broader purpose. [para. 49]
(Emphasis added in both paragraphs.)
[34] In
short, Parliament enacted s. 139 to simplify the calculation of multiple
custodial sentences in order to facilitate the administration of parole and
statutory remission. Thus understood, s. 139(1) is inapplicable to a
conditional sentence served in the community which — as the Court held in Proulx
— is not “subject to reduction through parole” (para. 42).
[35] Justice
Cromwell mentions (at para. 103) that “the parties were not in disagreement
about the effect of this provision and their arguments were premised on its
application to conditional sentences”. In fact, neither the appellant nor the
respondent mentioned s. 139 at all in either their written or oral
submissions in this Court. Their arguments turned instead on whether a
conditional sentence is a “sentence of imprisonment” within the meaning of s.
732(1). The appellant argued that it is; the respondent, that it is not. As I
have already made plain, I agree with the respondent and, in my view, that
alone is sufficient to dispose of the appeal.
V
[36] In
this case, the trial judge pronounced the intermittent sentence before the
conditional sentences. The Court of Appeal held that both the intermittent and
conditional sentences were entirely legal, but that the appellant was
nonetheless required, in virtue of s. 732(3) , to serve the intermittent
sentence on consecutive days, rather than intermittently, as ordered moments
earlier by the trial judge.
[37] Section
732(3) provides:
(3) Where a court imposes a sentence of
imprisonment on a person who is subject to an intermittent sentence in respect
of another offence, the unexpired portion of the intermittent sentence shall be
served on consecutive days unless the court otherwise orders.
[38] Justice
Cromwell concludes that the Court of Appeal erred in finding that the trial
judge did not “otherwise orde[r]”, within the meaning of s. 732(3) . Not only
were the intermittent and conditional sentences handed down by the same judge
on the same day in a single set of reasons, but the trial judge also made clear
his intention that the intermittent sentence be served intermittently,
notwithstanding the conditional sentences imposed on the other counts. The
reasons of the trial judge would thus satisfy the requirement of s. 732(3) to
“otherwise orde[r]” — if s. 732(3) applied, as a matter of law, to
conditional sentences.
[39] I
agree with the Crown that it does not. A purposive and contextual reading of
“sentence of imprisonment” in s. 732(3) makes clear that it does not
contemplate conditional sentences at all. As Sinclair J. observed in R. v.
Vajdl, 2004 MBQB 167, 186 Man. R. (2d) 149, at para. 11:
Clearly, it must have been the intention of Parliament that an
intermittent sentence should not be converted to straight time upon the
imposition of a conditional sentence. The intent of an intermittent sentence
and a conditional sentence are the same — to allow the accused to serve his
sentence in the community to the fullest extent possible.
In short, a
conditional sentence is not a “sentence of imprisonment” within the meaning of
s. 732(1), (2) or (3) .
[40] As a
matter of principle, I agree with Justice Cromwell that nothing in this appeal
should turn on the order in which the sentences were pronounced. But this
hardly favours the appellant’s case. On the appellant’s view, a 90‑day
intermittent sentence can be rendered illegal by the imposition in its final
hours of another sentence of imprisonment (conditional or otherwise) of more
than a single day. The intermittent sentence, legal when imposed and final for
all legal purposes (never having been set aside on appeal), would in this
example be almost entirely served, yet retroactively invalidated by a
subsequent sentence for a different offence. Any different sequence of
sentences leading to the same result would produce equally absurd effects,
contrary to the “well established principle of statutory interpretation that
the legislature does not intend to produce absurd consequences” (Rizzo &
Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 27).
VI
[41] Finally,
a brief word regarding the four decisions cited by Justice Cromwell in support
of the proposition that “it is the total length of the merged sentences that
governs eligibility for an intermittent sentence” (para. 76) (R. v. Fletcher
(1982), 2 C.C.C. (3d) 221 (Ont. C.A.); R. v. Aubin (1992), 72 C.C.C.
(3d) 189 (Que. C.A.); R. v. McLeod, [1993] Y.J. No. 17 (QL) (C.A.); and R.
v. Drost (1996), 172 N.B.R. (2d) 67 (C.A.)).
[42] First,
these decisions did not deal at all with the issue that concerns us here: none
of them held that a 90-day intermittent sentence is rendered illegal by a
contemporaneous or subsequent conditional sentence of any duration. All four
cases, unlike the present matter, concerned consecutive custodial sentences
cumulatively exceeding the 90-day limit for intermittent sentences established
by s. 732(1) or its antecedents. None mentioned the exclusionary definition of
offender set out in s. 99(1) of the CCRA , or its equivalent in
predecessor statutes. Thus, for example, s. 2 of the Parole Act, R.S.C.
1985, c. P-2, defined “inmate” (“offender” in Part II of the CCRA ) to
exclude persons serving intermittent sentences. And while all four decisions
did rely on s. 139(1) or its predecessors in striking down consecutive
intermittent custodial sentences exceeding 90 days, this result was otherwise
inevitable on a purposive and principled application of s. 732(1) of the Criminal
Code .
[43] That
is the approach I propose here. It is entirely compatible with the result
reached in the four cases mentioned above and with the three others mentioned
by my colleague at para. 76 of his reasons (R. v. Frechette, 200l MBCA
66, 154 C.C.C. (3d) 191; R. v. Squibb, 2006 NLCA 9, 253 Nfld. &
P.E.I.R. 285; R. v. Robert, 2007 QCCA 515, [2007] Q.J. No. 2821 (QL)).
None of these cases held that a conditional sentence is a sentence of
imprisonment within the meaning of s. 732 of the Criminal Code .
Moreover, nothing I have said here has the effect of overruling any of the
decisions mentioned by my colleague, in the sense of declaring any one of them
to have been wrongly decided. On the contrary, I believe that the court
reached the correct conclusion in all seven instances.
[44] I
shall presently explain why this is true of the Fletcher line of cases.
By analogy, the same is true of Frechette, Squibb and Robert:
chaining conditional sentences that equal or exceed two years in the aggregate
effectively transforms a penitentiary sentence into a series of sentences to be
served in the community. A purposive reading of s. 742.1 of the Criminal
Code prohibits this result: see Proulx, at para. 55. I thus find it
hardly surprising that the Alberta Court of Appeal, since Frechette, Squibb
and Robert were decided, arrived at the same result on a purposive
interpretation of s. 742.1 — while expressly “question[ing] whether s. 139 of
the Corrections and Conditional Release Act may be relied upon to
regulate the granting of conditional sentences, as was suggested in Frechette”:
R. v. Lyver, 2007 ABCA 369, 229 C.C.C. (3d) 535, at para. 11.
[45] Fletcher
and its progeny would have arrived at the same result even in the absence
of a provision similar to s. 139 of the CCRA , because the chaining of
intermittent sentences beyond the 90-day limit established by Parliament
defeats the very object of s. 732(1) and disregards the correctional principles
that it was meant to serve. Intermittent sentences strike a legislative balance
between the denunciatory and deterrent functions of “real jail time” and the
rehabilitative functions of preserving the offender’s employment, family
relationships and responsibilities, and obligations to the community.
[46] That
balance cannot be sustained indefinitely. Parliament has therefore fixed its
duration at a reasonable limit of 90 days. Beyond that limit, intermittent
sentences lose their purpose: the recurring “taste of jail” becomes
disproportionately punitive as a deterrent and counter-productive as a
rehabilitative and correctional alternative to continuous terms of
imprisonment.
[47] It has
not been suggested, on the other hand, that the combination of an intermittent
and a conditional sentence — even when their aggregate duration exceeds 90 days
— is similarly objectionable on any ground of correctional policy, or
inconsistent with the sentencing principles enacted by Parliament in the
governing sections of the Criminal Code .
[48] On the
contrary, it is conceded that their combination in this case served the
purposes of both intermittent and conditional sentences. This fit combination
of sentences harmonizes the differing correctional advantages of conditional
and intermittent sentences, while respecting the letter and the spirit of the
provisions of the Criminal Code dealing with both: R. v. Power
(2003), 176 C.C.C. (3d) 209 (Ont. C.A.).
[49] In Power,
the accused had received a 90-day intermittent sentence for one offence and,
for another, a consecutive 18-month conditional sentence followed by
probation. Both sentences were affirmed on appeal. After considering their
distinct purposes and combined effect, Doherty J.A. (Rosenberg and Armstrong
JJ.A. concurring) concluded that the sentences were appropriate and endorsed
the trial judge’s reasons for imposing them as “thorough and thoughtful” (para.
12).
[50] Power
did not explicitly address the legality of the intermittent sentence
affirmed in that case and is therefore of limited precedential value on that
issue. But the legality of an impugned sentence is always before the
court to which it has been appealed: In determining that a sentence is fit, the
court implicitly confirms its legality.
[51] In
this appeal, as in Power (at para. 12), “[t]he trial judge concluded,
quite properly, that despite the positive features of the respondent’s
character and background, principles of deterrence and denunciation required a
period of incarceration” on at least one of the charges. After careful
consideration, the trial judge in this case, again as in Power, ordered
that the custodial sentence be served intermittently.
[52] In my
respectful view, the conclusion to which Justice Cromwell is driven by his
reasons is incompatible with the sentencing objectives of the trial judge and
unduly limits the discretion of other trial judges to craft, in future cases,
equally fit and thoughtful sentences.
[53] I
conclude by emphasizing that conditional and intermittent sentences have
overlapping but distinct purposes. I have already dealt with the sentencing
and correctional purposes of intermittent sentences. With respect to
conditional sentences, I am content simply to reiterate here this important
passage from Proulx (at para. 41):
A conditional sentence may be as onerous as, or perhaps even more onerous
than, a jail term, particularly in circumstances where the offender is forced
to take responsibility for his or her actions and make reparations to both the
victim and the community, all the while living in the community under tight
controls.
This case
illustrates how intermittent and conditional sentences can be effectively
combined to take appropriate advantage of their complementary purposes — in
full compliance with the statutory conditions by which they are respectively
governed.
VII
[54] For
all of these reasons, I would allow the appeal and affirm the sentences imposed
by the trial judge.
The following are the reasons delivered by
[55] Binnie J. — The narrow issue on this
appeal is whether the trial judge could lawfully impose a 90-day sentence of
imprisonment to be served by the appellant intermittently, together with
concurrent conditional sentences of 18 months. Without entering into the
debate between my colleagues Justices Fish and Cromwell on the scope and
application of the Corrections and Conditional Release Act, S.C. 1992,
c. 20 , and other related issues, I would allow the appeal on a short
ground, as will be seen, and affirm the lawfulness of the intermittent sentence
imposed by the trial judge.
[56] The
availability of the intermittent sentence depends on s. 732(1) of the Criminal
Code, R.S.C. 1985, c. C-46 , which provides in part as follows:
732. (1) Where the court imposes a sentence of imprisonment
of ninety days or less on an offender . . . the court may, having regard to
the age and character of the offender, . . . and the availability of
appropriate accommodation to ensure compliance with the sentence, order
(a) that
the sentence be served intermittently at such times as are specified in
the order; and
(b) that the offender comply with the conditions prescribed . .
. during the period that the sentence is being served . . . .
[57] I
agree with Cromwell J. that the text of the Criminal Code and this
Court’s jurisprudence make it clear that a conditional sentence of
imprisonment is generally considered a “sentence of imprisonment” and
therefore, at first blush, falls within the opening words of s. 732(1) . It is
imprisonment without incarceration. However, s. 732(1) provides an exceptional
context because its application presupposes, in my view, that the “sentence of
imprisonment”, referred to therein, is capable of being served
intermittently. Yet conditional sentences, in their nature, do not lend
themselves to being served intermittently. On the face of it, therefore, s.
732(1) seems to have no application to the conditional sentences in this case.
[58] To
address this difficulty, my colleague Cromwell J. distinguishes between the
introductory reference in s. 732(1) to “a sentence of imprisonment”, which he
says includes a conditional sentence, and the other references in s. 732(1) to
“the sentence” which he interprets as referring to a different mode of
serving a sentence of imprisonment, i.e. intermittently rather than
conditionally. I prefer a more straightforward reading of s. 732(1). I would
hold that the “sentence of imprisonment” referred to in the opening words of s.
732(1) is the same sentence as “the sentence” also mentioned elsewhere in the
subsection, including paras. (a) and (b). If the later
references to “sentence” do not include a conditional sentence (as I believe to
be the case) because a conditional sentence intermittently, the opening
reference to “a sentence” also excludes conditional sentences. Conditional
sentences therefore do not get in the door of s. 732(1) and, on this view,
there is no need to attribute different meanings to the same word (“sentence”)
in the same subsection. Textually and contextually, s. 732(1) simply does not
extend to conditional sentences.
[59] That
being the case, the issue of whether there is a “merger” of the three sentences
at issue here to form a single period of “imprisonment of ninety days or less”
does not arise. There was no possibility of merger because the conditional
sentences were not within the s. 732(1) frame of reference and did not trigger
its limitation. There is no issue that requires determination under the Corrections
and Conditional Release Act . The trial judge’s 90-day intermittent
sentence was lawful.
[60] On
this narrow ground, I would allow the appeal and affirm the sentences imposed
by the trial judge.
The following are the reasons delivered by
Cromwell J. (dissenting in
part) —
1. Introduction and Issues
[61] This
appeal concerns the interpretation of the intermittent sentence provisions of
the Criminal Code, R.S.C. 1985, c. C-46 . We are asked to decide whether
the words “sentence of imprisonment” in s. 732(1) of the Code include a
conditional sentence of imprisonment. The Criminal Code and this Court’s
prior jurisprudence describe conditional sentences as sentences of
imprisonment. To hold that a conditional sentence of imprisonment is a sentence
of imprisonment gives effect to the grammatical and ordinary sense of the words
used in the provision. In my respectful view, there is nothing in the context
or scheme of the relevant legislation that suggests that we should give these
words any other meaning.
[62] The
appellant, Mr. Middleton, was sentenced at the same hearing to two special
forms of imprisonment so that he could continue to work and contribute to his
daughter’s support. He received a 90-day intermittent sentence of imprisonment
to be served on weekends and two 18-month concurrent conditional sentences of
imprisonment to be served in the community. He also received a period of
probation, which is not in issue. The sentence gives rise to two issues.
[63] The
first is whether an intermittent sentence was available. The Code gives
courts the power to order that a sentence of imprisonment be served
intermittently — for example on weekends — rather than on consecutive days.
But the Code limits this power to sentences of imprisonment of 90 days
or less. At issue is whether the 18-month concurrent conditional sentences of
imprisonment which the judge imposed are sentences of imprisonment. The parties
agree that if they are, an intermittent sentence was not available here
because, taking the conditional sentences into account, the sentence of
imprisonment imposed by the judge was longer than 90 days.
[64] The
second issue arises because the judge imposed the intermittent sentence before
imposing the concurrent conditional sentences. The Code provides that
when a court imposes a sentence of imprisonment on a person who is subject to
an intermittent sentence, the unexpired portion of the intermittent sentence
will be served on consecutive days (in other words, not intermittently) unless
the court otherwise orders. At issue is the effect of this provision in this
case. Does it require that the intermittent sentence be served on consecutive
days because the judge, having imposed a sentence of imprisonment on a person
who was at that moment already subject to an intermittent sentence, did not
expressly order otherwise?
[65] The
Court of Appeal for Ontario held that while an intermittent sentence was
available here, the Code requires that it be served on consecutive days
because the judge did not expressly order otherwise (2007 ONCA 538, 227 O.A.C.
59). The appellant challenges the first conclusion and both the appellant and
the respondent Crown dispute the second.
[66] I
respectfully disagree with both of the Court of Appeal’s conclusions. My view
is that the judge could not order an intermittent sentence here because the
18-month conditional sentences of imprisonment which he imposed are sentences
of imprisonment. He therefore imposed a sentence of imprisonment of more than
90 days and the Code provides that, in these circumstances, an
intermittent sentence cannot be imposed. As to the second issue, I am of the
view that the sentencing judge should be understood to have ordered that the
intermittent sentence (if legal) would continue to be served intermittently.
The judge at the same hearing imposed an intermittent sentence and, virtually
in the same breath, another period of imprisonment. In these circumstances, he
should be understood to have directed that the intermittent sentence was to be
served intermittently.
[67] I
would allow the appeal.
2. Brief
Overview of the Facts
[68] The
judge in this case faced a difficult problem and he thought that an
intermittent sentence of imprisonment was part of the solution. The judge found
the offender, Mr. Middleton, guilty after trial of a number of acts of domestic
violence arising from two incidents (2006 CarswellOnt 9387). The first, in
September 2004, included an assault that left the appellant’s fiancée, who is
the mother of his young daughter, with a broken clavicle. The second, in
February 2005, included threats and pointing a pellet gun. The judge rightly
sought to denounce and deter this sort of senseless brutality and to protect
the appellant’s fiancée and others. But he was also concerned about the
financial impact of a jail sentence on Mr. Middleton’s daughter. The judge did
not want Mr. Middleton’s punishment to deprive his child of the court-ordered
financial support he was capable of providing through his well-paid employment.
[69] In an
attempt to give effect to these competing objectives, the judge imposed a
90-day period of imprisonment to be served intermittently for the assault and
concurrent 18-month conditional sentences for the threatening and pointing of
the pellet gun, all to be followed by three years of probation. This, the judge
thought, would meet the need to impose “a real jail sentence” while at the same
time allowing Mr. Middleton “to maintain [his] employment and to continue to
support [his] daughter pursuant to the Court Order” (2006 CarswellOnt 9388, at
paras. 6-7).
3. Analysis
A. Was an
Intermittent Sentence Available?
(i) The Issue in Context
[70] There
is a distinction that is critical to an understanding of the rather technical
issues in this appeal. It is the distinction between the question of whether a
particular sentence is, in law, a “sentence of imprisonment” and the question
of how that “sentence of imprisonment” is to be served. In short, the
distinction is between the nature of the sentence and the manner in which it is
to be served. While imprisonment generally results from a sentence of
imprisonment, not all sentences of imprisonment result in the offender being
imprisoned while serving that sentence. The Criminal Code and the Corrections
and Conditional Release Act, S.C. 1992, c. 20 (“CCRA ”), provide that
sentences of imprisonment may be served in various ways. The critical point is
that the manner in which the sentence is served does not alter its nature as a
sentence of imprisonment. Contrary to my colleague Fish J.’s suggestion, the
existence of this distinction is not inconsistent with the principle enunciated
by this Court in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, that the
duration of the sentence should not be determined separately from the
determination of its venue. Rather, Proulx recognizes the distinction
between the legal nature of the sentence as a sentence of imprisonment and an
order respecting the manner in which it is to be served.
[71] Intermittent
and conditional sentences of imprisonment are examples in the Code of
how sentences of imprisonment may be served in different ways than in
continuous custody. Section 732(1) of the Criminal Code allows a court
to order that a sentence of imprisonment be served intermittently rather than
on consecutive days. That the intermittent sentence is a manner of serving a
sentence of imprisonment is clear from the text of the section: “Where the
court imposes a sentence of imprisonment . . . the court may . . . order that
the sentence be served intermittently . . .”. The intermittent
sentence is available only where the court “imposes a sentence of imprisonment”
and the intermittent aspect is an order as to how that sentence of imprisonment
is to be served. Similarly, the conditional sentence of imprisonment is a
sentence of imprisonment that is ordered to be served in the community. This is
clear from the text of s. 742.1 of the Code. Where “the court imposes a
sentence of imprisonment of less than two years . . . the court may . . .
order that the offender serve the sentence in the community”. A conditional
sentence is a sentence of imprisonment which the court directs to be served in
the community.
[72] Parole
and statutory release are examples under the CCRA where sentences of
imprisonment may be served while not imprisoned. So, for example, we find in
s. 127(1) that “an offender sentenced . . . to penitentiary is entitled to be
released on the date determined in accordance with this section and to remain
at large until the expiration of the sentence according to law”. In other
words, the Act directs the manner in which the sentence of imprisonment is to
be served and that the offender continues to serve the sentence of imprisonment
while at large. Similarly, we find in s. 128(1) that an offender “who is
released on parole, statutory release or unescorted temporary absence
continues, while entitled to be at large, to serve the sentence until its
expiration according to law”. This again shows that the statute governs how a
sentence of imprisonment is to be served and that an offender who is subject to
a sentence of imprisonment continues to serve that sentence while at large.
[73] This
distinction between the nature of the sentence and the manner in which it is to
be served is important for the correct interpretation of s. 732 of the Criminal
Code , the section in issue in this appeal. It provides:
732. (1) Where the court imposes a sentence of imprisonment
of ninety days or less on an offender convicted of an offence, whether in
default of payment of a fine or otherwise, the court may, having regard
to the age and character of the offender, the nature of the offence and the
circumstances surrounding its commission, and the availability of appropriate
accommodation to ensure compliance with the sentence, order
(a) that
the sentence be served intermittently at such times as are specified in the
order;
[74] The
opening words of the section refer to the nature of the sentence: the section
is engaged only if “the court imposes a sentence of imprisonment of ninety days
or less”. These opening words of the section do not distinguish among the
different ways in which a sentence of imprisonment may be served. Their focus
is on the length of the “sentence of imprisonment” imposed.
[75] As
noted earlier, the judge in this case imposed concurrent 18-month conditional
sentences of imprisonment as well as the 90 days of imprisonment to be served
intermittently. The question is whether s. 732(1) permits the combination of an
intermittent sentence of incarceration with a conditional sentence where the
total period exceeds 90 days.
[76] Before
tackling this interpretative issue, I should note that the parties’ arguments
in this Court proceed from a shared, undisputed premise: If the conditional
sentences imposed by the judge are sentences of imprisonment, they merge with
the 90-day period to form a single period of imprisonment which, of course,
exceeds 90 days. The appellant points out in his factum, at para. 36, that
“[s]entencing jurisprudence regarding s. 732(1) and the section’s predecessor,
has long established that two separate intermittent sentences cannot be made
consecutive to each other if the aggregate sentence exceeds the Code’s
ninety day maximum.” The appellate court decisions that the appellant cites as
authority for this proposition turn on their interpretation of s. 14(1) of the Parole
Act, R.S.C. 1970, c. P-2, and its successor provisions, now s. 139 of the CCRA :
R. v. Fletcher (1982), 2 C.C.C. (3d) 221 (Ont.); R. v. Aubin (1992),
72 C.C.C. (3d) 189 (Que.); R. v. McLeod, [1993] Y.J. No. 17 (QL); R.
v. Drost (1996), 172 N.B.R. (2d) 67. Where, as in these cases, an offender
who is subject to a sentence receives an additional sentence, it is the total
length of the merged sentences that governs eligibility for an intermittent
sentence. The Crown took no issue in its factum with this interpretation or
with the correctness or relevance of these authorities. I am aware of no case
law inconsistent with the position that the parties have taken with respect to
the application of s. 139 in this context and note that it has been held by at
least three courts of appeal that s. 139 of the CCRA applies to
conditional sentences: see R. v. Frechette, 2001 MBCA 66, 154 C.C.C.
(3d) 191; R. v. Squibb, 2006 NLCA 9, 253 Nfld. & P.E.I.R. 285; R.
v. Robert, 2007 QCCA 515, [2007] Q.J. No. 2821 (QL). I will therefore
accept the parties’ shared premise as correct. I should add that the
implications of s. 139 in other contexts have not been argued and are not
before us.
[77] The parties’
premise is that, if the 18-month conditional sentence imposed by the judge in
this case are sentences of imprisonment within the meaning of s. 732(1) , it
merged with the 90-day sentence of imprisonment imposed by the judge with the
result that there is, for the purposes of determining eligibility for an
intermittent sentence under the Code, one sentence of imprisonment of
more than 90 days. That is why, from the parties’ perspective, the issue
concerning the legality of the 90-day intermittent sentence in this case turns
solely on whether the “sentence of imprisonment” described in s. 732 of the Criminal
Code includes a conditional sentence.
(ii) Is a Conditional Sentence a “Sentence of Imprisonment”?
[78] This
Court has often reiterated its preferred formulation of the modern principle of
statutory interpretation: “. . . the words of an Act are to be read in their
entire context and in their grammatical and ordinary sense harmoniously with
the scheme of the Act, the object of the Act, and the intention of Parliament”:
Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R.
559, at para. 26, quoting E. A. Driedger, Construction of Statutes (2nd
ed. 1983), at p. 87; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R.
27, at para. 21.
[79] I turn
first to the grammatical and ordinary sense of the words “sentence of
imprisonment” in order to determine whether these words as used in s. 732(1) of
the Code include a conditional sentence of imprisonment. I conclude that
the Criminal Code establishes, and the jurisprudence of this Court
confirms, that a conditional sentence of imprisonment is indeed a sentence of
imprisonment.
[80] The Criminal
Code refers to the conditional sentence as a “Conditional Sentence of
Imprisonment”: see the heading before s. 742 . In addition, the Code
provides that a conditional sentence of imprisonment is only available where
“the court imposes a sentence of imprisonment of less than two years”: see s.
742.1 . The court imposes a sentence of imprisonment and orders that it be
served in the community. The text of the Code treats the conditional
aspect of the sentence — that is, the order that the sentence of imprisonment
be served in the community — as relating to the manner in which the sentence
of imprisonment is to be served. That order does not detract from the fact that
the sentence imposed is, as the section says, a sentence of imprisonment.
[81] In Proulx,
the Court affirmed the importance of the grammatical and ordinary sense of the
words “sentence of imprisonment” in s. 742.1 and in the heading before s. 742
and confirmed that conditional sentences are sentences of imprisonment, noting
at para. 29 that:
The conditional sentence is defined in the Code
as a sentence of imprisonment. The heading of s. 742 reads “Conditional
Sentence of Imprisonment”. Furthermore, s. 742.1(a) requires the court
to impose a sentence of imprisonment of less than two years before considering
whether the sentence can be served in the community subject to the appropriate
conditions.
Similarly, in R.
v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, Binnie J. referred to Proulx,
and noted that “[a] conditional sentence is a sentence of imprisonment, albeit
the sentence is served in the community. It is imprisonment without
incarceration” (para. 25).
[82] The
opening words of s. 732(1) limit the cases in which a judge can order that a
sentence of imprisonment be served intermittently to those “[w]here the court
imposes a sentence of imprisonment of ninety days or less”. In light of the
text of the Criminal Code , as interpreted in this Court’s decisions in Proulx
and Wu, the ordinary and grammatical sense of the words “sentence of
imprisonment” includes a conditional sentence. The question is then whether
the entire context in which the words appear imposes a limit that is not clear
from the grammatical and ordinary sense of the words used. Given Parliament’s
express reference to conditional sentences as sentences of imprisonment,
affirmed by this Court’s jurisprudence, it would require compelling contextual
indications to establish that a conditional sentence of imprisonment is not a
sentence of imprisonment for the purposes of a particular section.
[83] My
colleague Fish J. suggests that the wording of s. 732 makes clear that the term
“sentence of imprisonment” in that section must refer to incarceration. This
is said to flow from s. 732(1) (b), which directs that “the offender
comply with the conditions prescribed in a probation order when not in
confinement during the period that the sentence is being served and, if the
court so orders, on release from prison after completing the intermittent
sentence”. However, the text of the section shows, in my view, that this point
should not be accepted. Respectfully, the references in s. 732(1) (b) to
“confinement” and “prison” have no bearing on the issue before us. I will
explain.
[84] An
intermittent sentence is a “sentence of imprisonment”. The manner in which it is
served is by the offender being in custody at specified times rather than on
consecutive days. It is therefore necessary to provide directions as to when
the offender will be in custody and when he or she will not. The words relating
to confinement and prison in s. 732(1) (b) are used in connection with
the manner in which the sentence of imprisonment is to be served. These sorts
of directions as to how an intermittent sentence of imprisonment is to be
served have no bearing on whether a conditional sentence of imprisonment is a
sentence of imprisonment within the opening words of s. 732(1) .
[85] Including
a conditional sentence of imprisonment within the words “sentence of
imprisonment” in s. 732 does not permit an order that a conditional sentence be
served intermittently. As I have said earlier, the intermittent sentence order
and the conditional sentence order direct different ways of serving a sentence
of imprisonment. They must be understood as being alternative ways of serving
a sentence of imprisonment. There is no authority in the Code for
combining (and no reason that I can think of for wanting to combine) these two
different ways of serving a sentence of imprisonment.
[86] Turning
to the broader statutory context, the Crown bases its interpretative argument
on this Court’s interpretation of s. 718.2 (e) in Proulx.
That section directs a court imposing a sentence to consider “all available
sanctions other than imprisonment that are reasonable in the
circumstances”. The Court in Proulx held that the term “imprisonment” in
s. 718.2 (e) should be understood to refer to actual incarceration. In
other words, the term “imprisonment” in s. 718.2 (e) should be understood
to refer to the manner in which the sentence is to be served — i.e. in prison
— rather than to the nature of the sentence itself — i.e. a “sentence of
imprisonment”. The Crown submits that we should apply the same interpretation
of “imprisonment” in s. 732 . The Crown’s argument in my respectful view
misapprehends the nature of the interpretive exercise in Proulx and
overlooks the distinction between the nature of a sentence and the manner in
which it is to be served.
[87] The
Court in Proulx was faced with equally authoritative English and French
versions of s. 718.2 (e), only one of which made sense in context, given
Parliament’s intention to reduce the rate of incarceration in Canada. The use
of the word “imprisonment” in the English version, if interpreted as including
a conditional sentence order that a sentence of imprisonment be served in the
community, would have precluded the use of conditional sentence orders to
achieve that objective. The French text of the section, however, made it clear
this was not Parliament’s intent. It directed “l’examen de
toutes les sanctions substitutives applicables qui sont justifiées dans
les circonstances”. In short, the conflict between the two official
language versions of the provision, coupled with the fact that reading the term
“imprisonment” in s. 718.2 (e) as including a conditional sentence was
exactly contrary to the obvious legislative intent, made it clear that the term
“imprisonment” in the English version of s. 718.2 (e) should be
understood to refer to the manner in which the sentence of imprisonment was to
be served rather than to all sentences of imprisonment, no matter how served.
As Lamer C.J. explained:
The use of “sanctions substitutives” for “sanctions other than
imprisonment” in the French version of this provision means that s. 718.2 (e)
plays a role not only in the decision as to whether imprisonment or
probationary measures should be imposed (preliminary step of the analysis), but
also in the decision as to whether to impose a conditional sentence of
imprisonment since conditional sentences are clearly “sanctions
substitutives” to incarceration.
The French version and the English version of s.
718.2 (e) are therefore in conflict. In conformity with a long‑standing
principle of interpretation, to resolve the conflict between the two official
versions, we have to look for the meaning common to both: [citations omitted].
Accordingly, the word “imprisonment” in s. 718.2 (e) should be
interpreted as “incarceration” rather than in its technical sense of encompassing
both incarceration and a conditional sentence. Read in this light, s. 718.2 (e)
clearly exerts an influence on the sentencing judge’s determination as to
whether to impose a conditional sentence as opposed to a jail term. [paras.
94-95]
[88] In
short, it is in the English version of s. 718.2 (e) that the term
“imprisonment” is used inconsistently unless narrowed to refer to the manner in
which the sentence is to be served. This is clear when one examines the French
text of the same provision. We have not been referred to any similar conflicts
between the English and French versions with respect to the meaning of
“imprisonment” elsewhere in the Code and the Crown properly concedes
that there is no such conflict in s. 732 .
[89] The
appellant’s interpretation of s. 732 , with which I agree, is supported by s.
731(1)(b) of the Code. That section authorizes a judge to impose
a period of probation “in addition to . . . sentencing the offender to
imprisonment for a term not exceeding two years”. The Crown concedes that a
period of probation may be added to a conditional sentence and that this flows
from the fact that the imposition of the probation order is authorized by s.
731(1)(b). (This was the basis on which the judge in this case could
impose the probationary term to follow the conditional sentences.) It follows
that the sentence of imprisonment contemplated by s. 731(1)(b) must
include a conditional sentence of imprisonment. Otherwise (and contrary to the
Crown’s concession), a sentencing judge would not be authorized to impose a
period of probation in addition to a conditional sentence.
[90]
If we were to accept the Crown’s position on this appeal, we
would have to decide that a conditional sentence is included in the
phrase “sentencing the offender to imprisonment” for the purposes of s.
731(1)(b) (as the Crown concedes), but that a conditional sentence is
not a sentence of imprisonment for the purposes of the very next
sentencing option in the Code, s. 732. I see no reason to conclude that
Parliament intended such similar expressions — “sentence of imprisonment” and
“sentencing . . . to imprisonment” — to have different meanings in
these consecutive sentencing options in the Code. The
provisions are even more similar in French: “. . . le tribunal peut . . . en
plus . . . de le condamner à un emprisonnement maximal de deux ans . . .”
in s. 731(1)(b) and “[l]e tribunal qui . . . le condamne à un
emprisonnement maximal de quatre‑vingt‑dix jours . . .” in s.
732(1) .
[91] A
court ought to give the same meaning to the same words used within the same
statute unless there is some good reason to think that Parliament did not
intend to express itself consistently. As Cory J. put it in Thomson v.
Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at p. 400:
“Unless the contrary is clearly indicated by the context, a word should be
given the same interpretation or meaning whenever it appears in an act.” With
respect to the use of the very similar expressions in ss. 731 and 732 of the Code,
we should conclude that they have the same meaning in consecutive sections of
the same statute unless the contrary is clearly indicated by the context. There
is no such contrary indication.
[92] As I
have suggested, where Parliament intended to limit or qualify the expressions
“sentence of imprisonment” or “imprisonment” so as to exclude conditional
sentences of imprisonment, it did so by using language which made this
exclusion clear in the context of the particular provision.
[93] Section
743.3 is an example. It expressly applies only to persons sentenced to
sentences of imprisonment in an institution. Of course, it can have no
application to persons who are ordered to serve their sentences of imprisonment
in the community. The section provides simply that where an offender is
sentenced to a sentence of imprisonment in an institution, the sentence is to
be served in accordance with the enactments and rules that govern the
institution to which he or she is sentenced:
743.3 A sentence of imprisonment shall be
served in accordance with the enactments and rules that govern the institution
to which the prisoner is sentenced.
[94] Specifying
the type of “sentence of imprisonment” being addressed, as does this section,
is consistent with the view that, absent such limitation or qualification, all
sentences of imprisonment are being referred to. Section 743.3 shows that
where some qualification of the generality of the term was intended in the Code,
it is stated expressly.
[95] There
are other instances in the Code in which Parliament has made clear that
the words “sentence of imprisonment” or “imprisonment” refer only to
incarceration. None of them detracts from the interpretation of s. 732 that
the appellant proposes and with which I agree.
[96] Sections
719(4) and 719(5) provide one example. These provisions use the expression
“term of imprisonment” and deal with the manner in which that term is to be
served in custody. There is no inconsistency between recognizing that these
provisions deal specifically with custodial sentences, as indicated through
references to “the day on which the convicted person is arrested and taken into
custody under the sentence” (s. 719(4)) or to the “execution of the warrant of
committal” (s. 719(5) ) and finding that the “sentence of imprisonment” referred
to in s. 732(1) includes a conditional sentence of imprisonment.
[97] Section
742.7(1) provides another example of a provision in which the term
“imprisonment” cannot include a conditional sentence. The section is at pains
to distinguish between a person serving a conditional sentence of imprisonment
and that person being imprisoned. Section 742.7(1) refers to the situation of
a person subject to a conditional sentence order (which is an order that a
sentence of imprisonment be served in the community) and the situation of that
person when “imprisoned”. Section 742.6(9)(c) and s. 742.7(2) clearly
distinguish between serving a sentence of imprisonment in the community and
serving the sentence of imprisonment in custody. Section 742.7(4) carefully
distinguishes between the service of a sentence in the community and serving it
in custody. These provisions do not at all detract from the view that a
conditional sentence of imprisonment is a manner of serving a sentence of
imprisonment. As I have said earlier, imprisonment generally results from a
sentence of imprisonment, but not all sentences of imprisonment result in
imprisonment.
[98] The
Crown submits that a different interpretation of “imprisonment” is merited in
s. 732 because it would allow sentencing judges greater discretion to craft fit
sentences tailored to the individual cases before them. However, it is simply
not possible for me to say that a conditional sentence of imprisonment is not a
sentence of imprisonment. But that is what the Crown’s position, if accepted,
would require us to say.
[99] I
accept, of course, that it is desirable that sentencing judges be able to
exercise their discretion to craft the most fit sentence in every case. But
that discretion is circumscribed by the limits imposed by the text of the Criminal
Code and other relevant legislation. The fact that an intermittent sentence
may appear appropriate in a particular case does not permit the courts to
impose a sentence that parliament has not authorized. In short, we must respect
and give effect to the parliamentary decision to limit the availability of
intermittent sentences to sentences of imprisonment of 90 days or less.
[100]
The Crown cites R. v. Power (2003), 176 C.C.C. (3d) 209 (Ont.
C.A.), submitting that in that case the court upheld the combination of an
intermittent sentence and a lengthy conditional sentence. However, the legality
of the sentence was not before the court; neither of the parties challenged the
legality of the combination of sentences and the court, understandably, did not
consider the issue. The case does not support the Crown’s interpretation.
[101]
So I conclude: First, the text of the Criminal Code and this
Court’s jurisprudence specify that a conditional sentence of imprisonment is a
“sentence of imprisonment”. Second, where Parliament intended that the words
“sentence of imprisonment” and equivalent expressions exclude conditional
sentences, it used language placed in a context which makes this clear. Third,
there is nothing in the text or context of s. 732(1) which justifies a
departure from the grammatical and ordinary meaning of the words “sentence of
imprisonment” in that section.
[102]
The judge in this case imposed a sentence of imprisonment of more than
90 days. As a result of s. 732(1) of the Code, he could not order that a
90-day portion of that sentence be served intermittently. The intermittent
sentence was therefore illegal and must be set aside.
B. Section 139 of the Corrections and
Conditional Release Act
[103]
My colleague Fish J. would hold that s. 139 of the CCRA does not
apply to conditional sentences. He states at para. 7 that “conditional
sentences are not contemplated by . . . s. 139 of the CCRA ” and at para.
34 that “s. 139(1) is inapplicable to a conditional sentence served in the
community”. As noted earlier, the parties were not in disagreement about the
effect of this provision and their arguments were premised on its application
to conditional sentences. They have therefore had no opportunity to respond to
the suggestion that their arguments in this Court were based on an erroneous
premise.
[104]
Respectfully, I see no reason to go behind the premise on which the
parties advanced this appeal, namely that, as a result of s. 139 of the CCRA ,
if a conditional sentence is a sentence of imprisonment within the meaning of
s. 732(1) of the Code, an intermittent sentence was not available here.
C. Does the Intermittent Sentence, if Legal, Have to Be Served
on Consecutive Days?
[105]
The Court of Appeal, while holding that the sentence was not illegal,
concluded that the 90-day intermittent sentence had to be served on consecutive
days by virtue of s. 732(3) . I respectfully disagree with this conclusion as
does my colleague Fish J. Of course, because I would hold that the sentence was
illegal, it is not strictly necessary to address this question. However, the
point has been fully argued and it will be useful to address it.
[106]
Section 732(3) provides that “[w]here a court imposes a sentence of
imprisonment on a person who is subject to an intermittent sentence in respect
of another offence, the unexpired portion of the intermittent sentence shall be
served on consecutive days unless the court otherwise orders.” The Court of
Appeal held that s. 732(3) applied in this case because, “[a]t the time that
the sentencing judge imposed a sentence of imprisonment [i.e. the conditional
sentences] . . . he had already sentenced [Mr. Middleton] to the intermittent
sentence . . . . Section 732(3) has the effect of causing the unexpired
portion of the intermittent sentence . . . to be served on consecutive days”
(para. 21). In other words, the court held that s. 732(3) applied because of
the order in which the sentencing judge imposed the sentences. He first imposed
the intermittent sentence for one offence, then the conditional sentences for
two additional offences. Thus, in the view of the Court of Appeal, when the
judge imposed the conditional sentences, Mr. Middleton was at that point
already “subject to an intermittent sentence in respect of another offence”.
The judge failed to expressly order otherwise and, as a result, s. 732(3)
operated to collapse the “unexpired portion” of the intermittent sentence
imposed seconds before into a sentence to be served on consecutive days.
[107]
Respectfully, this interpretation of s. 732(3) is problematic for at
least three reasons.
[108]
First, it gives inconsistent meanings to the words “sentence of
imprisonment” within s. 732. The Court of Appeal found the intermittent
sentence to be lawful. As discussed earlier, this could only be so if the
conditional sentence were not sentences of imprisonment within the
meaning of s. 732(1) . However, the Court of Appeal also held that s. 732(3) was
engaged here. This could only be so if the conditional sentences were
sentences of imprisonment within the meaning of s. 732(3) . For reasons already
mentioned, this sort of inconsistent usage of the same words should not be
ascribed to Parliament.
[109]
Second, the Court of Appeal’s interpretation makes too much turn on the
order in which sentences are imposed. On the court’s interpretation, s. 732(3)
would not have been engaged had the judge imposed the sentences in the other
order because, in that case, Mr. Middleton would not have been subject to an
intermittent sentence when the conditional sentences were imposed. To have the
application of the section turn on the many chronological possibilities that
may occur in the sentencing process would make its operation arbitrary and
impractical. We should be slow to attribute such an intent to Parliament.
[110]
Finally, this approach to s. 732(3) thwarts the clear intent of the
sentencing judge. It could not be clearer that the judge in this case intended
the 90-day sentence of imprisonment to be served intermittently. Yet, because
he failed to expressly order otherwise, the Court of Appeal held that s. 732(3)
thwarted that clear intent. I cannot agree. Without attempting to address all
of the variations that could result from the timing and order of sentencing, it
seems to me that when a judge lawfully imposes an intermittent sentence and
another sentence of imprisonment as part of the same sentencing proceeding, the
judge should be understood to have relied on the closing words of s. 732(3) —
that is, on the authority to “otherwise orde[r]” — so that the intermittent
sentence does not become a sentence to be served on consecutive days. In other
words, where a sentencing judge imposes an intermittent sentence and, as part
of the same sentencing hearing, imposes another sentence of imprisonment that
can legally be combined with it, I would infer that the sentencing judge has
“otherwise order[ed]” and that the intermittent sentence is to be served
intermittently.
[111]
In this case, the sentencing judge tried to craft a sentence that would
balance the goals of denunciation, deterrence and protection with his concern
that the appellant’s daughter not suffer financial hardship. This manifested a
clear intention that the intermittent sentence, imposed first, be served
intermittently. Had the intermittent sentence as imposed been legal, the
operation of s. 732(3) to collapse the intermittent sentence would have
defeated the sentencing judge’s intention to impose what he considered a fit
sentence that would allow the appellant to keep his job so as to be able to
make support payments. Requiring the sentencing judge to specify that he meant
it when, moments before, he imposed an intermittent sentence is, in my
respectful view, to take a too formalistic approach to the words “otherwise
orders” in s. 732(3) .
D. What Sentence Should This Court Impose to Replace the
Illegal Intermittent Sentence?
[112]
While in my view, the intermittent sentence was unlawful in this case,
the Court holds otherwise. It is therefore not necessary for me to address the
question of what lawful sentence should be imposed.
4. Disposition
[113]
I would allow the appeal and set aside the 90-day intermittent sentence
as illegal. In light of the Court’s finding to the contrary, it is not
necessary for me to decide what sentence ought to have been imposed in its
place.
Appeal allowed, Cromwell J.
dissenting in part.
Solicitors for the appellant: Lafontaine & Associates,
Toronto.
Solicitor for the respondent: Attorney General of Ontario,
Toronto.