Unexpired intermittent sentence not rendered illegal by conditional sentence for differing offence imposed at same time

Friday's Supreme Court of Canada decision in R. v. Middleton, 2009 SCC 21 clarifies an issue in sentencing law -- whether the imposition of a conditional sentence of more than 90 days renders illegal an unexpired intermittent sentence imposed on the same offender for a different offence.  The Court held it does not.

A case summary follows:

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:  The appeal should be allowed and the sentences imposed by the trial judge affirmed.

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. 

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. 

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.  

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.
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4

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