Imprisonment

From Criminal Law Notebook
This page was last substantively updated or reviewed November 2023. (Rev. # 88811)

General Principles

A judge has the power to impose a sentence of imprisonment under the authority of s. 718.3 and 787:

Degrees of punishment

718.3 (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

Discretion respecting punishment

(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.
[omitted (3), (4), (5), (6), (7) and (8)]
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.

CCC (CanLII), (DOJ)


Note up: 718.3(1) and (2)

Maximum Penalties

See also: Statutory Maximum Penalties

In most cases, the maximum penalties will be specified within the wording of the offence. If the summary process penalty is not specified it will describe it as "summary conviction" which is defined in s. 787. Where the indictable offence does not specify the maximum penalty, s. 743 sets a default penalty.

Commencement of Sentence

Commencement of sentence

719 (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.

Time at large excluded from term of imprisonment

(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on the person.
[omitted (3), (3.‍1), (3.2), (3.3), (3.4)]

When time begins to run

(4) Notwithstanding subsection (1) [commencement of sentence], a term of imprisonment, whether imposed by a trial court or the court appealed to, commences or shall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody under the sentence.

When fine imposed

(5) Notwithstanding subsection (1) [commencement of sentence], where the sentence that is imposed is a fine with a term of imprisonment in default of payment, no time prior to the day of execution of the warrant of committal counts as part of the term of imprisonment.

Application for leave to appeal

(6) An application for leave to appeal is an appeal for the purposes of this section.
R.S., 1985, c. C-46, s. 719; R.S., 1985, c. 27 (1st Supp.), s. 157; 1995, c. 22, s. 6; 2009, c. 29, s. 3; 2018, c. 29, s. 66.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 719(1), (2), (4), (5), and (6)

A sentence is to commence once the sentence is imposed except where otherwise provided.[1]

Anytime where the offender is either unlawfully at large or lawfully at large on release cannot count against the offender's sentence.[2]

Where the accused resumes a sentence they begin their sentence on the day they are taken into custody.[3]

Where a default term of imprisonment is imposed on a fine, the sentence does not begin until the execution of the warrant of committal.[4]

  1. s. 719(1)
  2. S. 719(2)
  3. s. 719(4)
  4. s. 719(5)

Execution of Warrant of Committal

Once a person is sentenced, a warrant of committal must be executed under s. 744, which states:

Delivery of Offender to Keeper of Prison
Execution of warrant of committal

744 A peace officer or other person to whom a warrant of committal authorized by this or any other Act of Parliament is directed shall arrest the person named or described therein, if it is necessary to do so in order to take that person into custody, convey that person to the prison mentioned in the warrant and deliver that person, together with the warrant, to the keeper of the prison who shall thereupon give to the peace officer or other person who delivers the prisoner a receipt in Form 43 [forms] setting out the state and condition of the prisoner when delivered into custody.
R.S., 1985, c. C-46, s. 744; R.S., 1985, c. 27 (1st Supp.), s. 166, c. 1 (4th Supp.), s. 18(F); 1992, c. 11, s. 16; 1995, c. 22, s. 6.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 744


Warrant of Committal

A warrant of committal can be ordered under Part XVI or s. 515 (bail provisions). The judge should use "Form 8" for warrants of committal.

Custody With Probation

See also: Probation Orders
Making of probation order

731 (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,

[omitted (a)]
or
(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.

[omitted (2) and (3.1)]
R.S., 1985, c. C-46, s. 731; 1992, c. 1, s. 58, c. 20, s. 200; 1995, c. 22, s. 6; 1997, c. 17, s. 1.

CCC (CanLII), (DOJ)


Note up: 731(1)

Custody With Fine

See also: Fines
Power of court to impose fine

734 (1) Subject to subsection (2) [imposition of fine – ability to pay], a court that convicts a person, other than an organization, of an offence may fine the offender by making an order under section 734.1 [terms of order imposing fine]

(a) if the punishment for the offence does not include a minimum term of imprisonment, in addition to or in lieu of any other sanction that the court is authorized to impose; or
(b) if the punishment for the offence includes a minimum term of imprisonment, in addition to any other sanction that the court is required or authorized to impose.

[omitted (2), (3), (4), (5), (6), (7) and (8)]
R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.
[annotation(s) added]

CCC (CanLII), (DOJ)


Note up: 734(1)

Intermittent Sentence

A judge may order that an offender serve a jail sentence of 90 days or less intermittently. The judge will set the times that he is to serve the sentence as well as the conditions that are imposed while he is on release during the serving of the conditional sentence.

Section 732 states:

Intermittent sentence

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.
Application to vary intermittent sentence

(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.

Court may vary intermittent sentence if subsequent offence

(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.
1995, c. 22, s. 6.

CCC (CanLII), (DOJ)


Note up: 732(1), (2) and (3)

The maximum limit of 90 days refers to the duration going-forward from the time of sentencing being imposed, after taking into account remand credit.[1]

Purpose

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."[2]

It effectively "prioritizes rehabilitation by allowing offenders to potentially preserve their employment, maintain familial and community ties and continue specialized treatment."[3]

Consecutive 90 day Sentences

Intermittent sentences cannot exceed 90 days. This includes consecutive sentences totaling more than 90 days.[4]

Variations

A court has no authority to vary a sentence from an intermittent sentence to a non-intermittent sentence a once it has been ordered.[5]

There is some suggestion that the court has some jurisdiction to vary the entry and exit time of a conditional sentence.[6]

  1. R v Peebles, 2010 MBCA 47 (CanLII), 255 Man R (2d) 80, per Hamilton JA, at para 54
  2. R v Middleton, 2009 SCC 21 (CanLII), [2009] 1 SCR 674, per Fish J, at para 45
  3. R v Bertrand Marchand, 2023 SCC 26 (CanLII), per Martin J, at para 160 ("An intermittent sentence prioritizes rehabilitation by allowing offenders to potentially preserve their employment, maintain familial and community ties and continue specialized treatment that may not be available at a correctional institution. ")
  4. R v Balachanoff, 2003 BCCA 433 (CanLII), per Ryan JA
    R v Aubin, 1992 CanLII 12803 (QC CA), 72 CCC (3d) 189, per curiam
    see also Consecutive Sentences
  5. R v Germaine (1980) 39 NSR (2d) 177(*no CanLII links) , at para 5
    R v Jules, [1988] BCJ No 1605(*no CanLII links)
  6. R v EK, 2012 BCPC 132 (CanLII), per Gouge J
    See Role of the Trial Judge#Doctrine of Functus Officio

No Contact Orders while in Prison

See also: Terms of Release#Conditions

Under s. 743.21, a court may order that for the duration of serving a sentence that the offender be subject to no-contact conditions. Note this is separate from the forms of in-custody no-contact orders consisting of no contact while on remand (s. 516(2)) and while bail-denied detention order (515(12)).

Non-communication order

743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.

Failure to comply with order

(2) Every person who fails, without lawful excuse, to comply with the order

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
(b) is guilty of an offence punishable on summary conviction.

2008, c. 18, s. 42; 2018, c. 29, s. 67; 2019, c. 25, s. 305.

CCC (CanLII), (DOJ)


Note up: 743.21(1) and (2)

Imprisonment for Life

See Also