Regina v. Fisher [Indexed as: R. v. Fisher]

47 O.R. (3d) 397

[2000] O.J. No. 344

Docket No. C30256

Court of Appeal for Ontario

Carthy, Charron and Sharpe JJ.A.

February 15, 2000

Criminal law -- Sentence -- Conditional sentence -- Blended sentence imposing mixing provisions of intermittent sentence with conditional sentence -- Trial judge imposing two-year conditional sentence with term that accused spend weekends in jail for one year -- Trial judge erring -- Conditional sentence cannot include term that any portion be served in jail -- Condition pertaining to weekend imprisonment deleted -- Criminal Code, R.S.C. 1985, c. C-46, ss. 732(1), 742.1.

The accused was convicted on two counts of sexual assault. The trial judge imposed a conditional sentence of two years less a day on each count, concurrent. The accused was ordered to spend weekends in jail for one year. The Crown appealed, taking no issue with the fitness of the sentence but alleging that a blended sentence contravenes ss. 732(1) and 742.1 of the Criminal Code.

Held, the appeal should be allowed.

The trial judge purported to combine two sentencing provisions, the intermittent sentence (provided for under s. 732(1) of the Code) and the conditional sentence (provided for under s. 742.1). Since the sentence in this case was not one of imprisonment for 90 days or less, the intermittent sentence provisions of s. 732(1) of the Code were not available.

A conditional sentence order under s. 742.1 of the Code can only be made with respect to the total sentence. The offender cannot be ordered to serve part of his sentence in jail and part of the sentence in the community.

APPEAL by the Crown from a sentence.

Cases referred to R. v. Hirtle, [1999] N.S.J. No. 165 (C.A.); R. v. Kopf, [1997] A.Q. No. 795 (C.A.); R. v. Maynard, [1999] M.J. No. 8 (Man. C.A.); R. v. Monkman (1999), 1998 17681 (MB CA), 132 C.C.C. (3d) 89 (Man. C.A.); R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449, 2000 SCC No. 5; R. v. Wey, 1999 32187 (MB CA), [1999] A.J. No. 957 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46, ss. 732(1), 742.1, 742.6(9)

Roger A.S. Pinnock, for the Crown, appellant. Constance A. Baran-Gerez, for respondent.

[1] BY THE COURT: -- The Crown seeks leave to appeal the sentence imposed on the respondent on the ground that a blended sentence of imprisonment, to be served partly in custody and partly in the community, contravenes ss. 732(1) and 742.1 of the Criminal Code, R.S.C. 1985, c. C-46. The Crown does not otherwise dispute the fitness of the sentence. The respondent concedes that the sentence is illegal. We agree.

[2] Following his trial before a judge and jury, the respondent was convicted on two counts of sexual assault. The trial judge sentenced the respondent to a conditional sentence of two years less one day on each count, to be served concurrently. The conditional sentence order was made subject to the respondent complying with a number of conditions, one of which was that the respondent spend weekends in jail for a period of one year.

[3] By this order, the trial judge purported to combine two sentencing provisions, the intermittent sentence and the conditional sentence, provided for under ss. 732(1) and 742.1 of the Criminal Code respectively. These sections read as follows:

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.

742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court

(a) imposes a sentence of imprisonment of less than two years, and

(b) is satisfied that serving the sentence in the community would not endanger the safety of the community, and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2,

the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3.

[4] It is clear that s. 732(1) provides for the imposition of an intermittent sentence only where the court imposes a sentence of imprisonment of "ninety days or less". Since the sentence of imprisonment imposed by the trial judge exceeded 90 days, this option was not available.

[5] The imposition of a custodial sentence as part of a conditional sentence is also contrary both to the wording of s. 742.1 and to the underlying purpose of the conditional sentence regime.

[6] Section 742.1 provides that, where the two prerequisites are met, the court may order that the offender "serve the sentence in the community". It does not provide that the offender may be ordered to serve a portion of his sentence in the community. A useful comparison may be made with the wording under s. 742.6(9) which does make that provision. Under s. 742.6(9), where the court is satisfied that the offender has breached a condition of the conditional sentence order, the court may direct "that the offender serve in custody a portion of the unexpired sentence". Hence a conditional sentence order can only be made with respect to the total sentence.

[7] This interpretation is consistent with the purpose of the conditional sentencing scheme. As stated by the Supreme Court of Canada in the recent decision of R. v. Proulx (2000), 2000 SCC 5, 140 C.C.C. (3d) 449, at para. 21, 2000 SCC No. 5, "[t]he conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders. The offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison" (emphasis added).

[8] Other Canadian appellate courts that have considered this same issue have consistently held that a blended sentence, which purported to combine a custodial order with an order that the sentence be served in the community, was illegal: see R. v. Hirtle, [1999] N.S.J. No. 165 (C.A.); R. v. Wey, 1999 32187 (MB CA), [1999] A.J. No. 957 (C.A.); R. v. Monkman (1999), 1998 17681 (MB CA), 132 C.C.C. (3d) 89 (Man. C.A.); R. v. Maynard, [1999] M.J. No. 8 (Man. C.A.) and R. v. Kopf, [1997] A.Q. No. 795 (C.A.).

[9] Leave to appeal is therefore granted, the appeal is allowed and the sentence is varied by deleting the condition that weekends be served in jail for a period of one year.

Appeal allowed.