Consecutive intermittent sentences improper

R. v. Clouthier, 2016 ONCA 197:

[27]       Section 732(1) of the Criminal Code describes the circumstances in which a sentence of imprisonment may be served intermittently. The subsection 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; 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. [Emphasis added.]

[28]       Under s. 719(1) of the Criminal Code, a sentence commences when it is imposed, except where a relevant statute provides otherwise. 

[29]       Section 718.3(4) describes the circumstances in which a sentencing court has the authority to order that the sentences be served consecutively: 

718.3(4) The court or youth justice  court that sentences an accused may direct that the terms of imprisonment that are imposed by the court or the youth justice court or that result from the operation of subsection 734(4) or 743.5(1) or (2) shall be served consecutively, when

(a) the accused is sentenced while under sentence for an offence, and a term of imprisonment, whether in default of payment of a fine or otherwise, is imposed; 

(b) the accused is found guilty or convicted of an offence punishable with both a fine and imprisonment and both are imposed; 

(c) the accused is found guilty or convicted of more than one offence, and

(i) more than one fine is imposed, 

(ii) terms of imprisonment for the respective offences are imposed, or

(iii) a term of imprisonment is imposed in respect of one offence and a fine is imposed in respect of another offence; or 

(d) subsection 743.5(1) or (2) applies.[2]

[30]       In Middleton, the appellant had been sentenced at the same time to a term of 90 days' imprisonment to be served intermittently and to two concurrent 18-month sentences to be served conditionally. On appeal, this court held that: 

                             i.        both the intermittent and conditional sentences were legal; but 

                            ii.        the 90-day prison sentence had to be served on consecutive days, not intermittently. 

[31]       The Supreme Court of Canada allowed the appeal and affirmed the sentences imposed by the trial judge. The majority concluded that "chaining" intermittent sentences beyond the 90-day limit established by Parliament in s. 732(1) defeats the very object of the subsection and disregards the correctional principles it was meant to serve: Middleton, at paras. 45-46. The conditional sentences imposed at the same time were not "a sentence of imprisonment" within the meaning of s. 732(3) and thus did not extend the intermittent sentence beyond the 90-day limit in s. 732(1). It followed, according to the majority, that the sentences imposed by the trial judge – a 90-day sentence of imprisonment to be served intermittently and concurrent sentences of 18 months to be served conditionally – were lawful. 

[32]       In R. v. Nunner (1976), 30 C.C.C. (2d) 199 (Ont. C.A.), the appellant was charged with and pleaded guilty to several offences, including a count of robbery. The trial judge suspended the passing of sentence and put the appellant on probation on all of the offences except robbery. A term of the probation order was that the appellant was to return before the sentencing judge in three months, and again five months thereafter, with reports from his school and his probation officer. The trial judge adjourned the robbery sentencing for three months, and then for another two months, explaining to the appellant that he would be watching his conduct and would impose a substantial term of imprisonment if the appellant were in any further trouble. 

[33]       The Crown sought mandamus to compel the trial judge to proceed with the sentencing on the robbery conviction. The order was granted. Nunner appealed. This court set aside the order in lieu of mandamus on the ground of prematurity. 

[34]       A majority of the Court was of the view that a sentencing judge had the discretion to postpone sentencing provided the discretion was not exercised for an illegal purpose, for example, to see whether the offender would make restitution, aid in the investigation of others, or help police recover stolen property: Nunner, at p. 207. The majority regarded any postponement of sentencing beyond a month or two as prima facie evidence of the exercise of judicial discretion for an improper purpose: Nunner, at p. 207.

Of the Law Societies of Upper Canada and Nunavut