Canadian Criminal Sentencing/Available Sentences/Imprisonment

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General Principles[edit]

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.
...
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.
...
General penalty
787. (1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both.


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Intermittent Sentence[edit]

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.


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Intermittent sentences cannot exceed 90 days. This includes consecutive sentences totaling more than 90 days.[1]

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]

A court has no authority to vary a sentence from an intermittent sentence to a non-intermittent sentence a once it has been ordered.[3]

There is some suggestion that the court has some jurisdiction to vary the entry and exit time of a conditional sentence.[4]

  1. R. v. Balachanoff, 2003 BCCA 433
  2. R. v. Middleton (2009), 388 N.R. 89, at para 45
  3. R v Germaine (1980) 39 NSR (2d) 177 at para. 5; R v Jules [1988] BCJ No 1605
  4. R. v. E.K., 2012 BCPC 132
    See Canadian_Criminal_Procedure_and_Practice/Trials/Role_of_Trial_Judge#Doctrine_of_Functus_Officio

No Contact Orders while in Prison[edit]

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.

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, the proof of which lies on that person, 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 and liable to imprisonment for a term not exceeding eighteen months.

2008, c. 18, s. 42.


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