SUPREME COURT OF CANADA

Citation: R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674

Date: 20090522

Docket: 32138

Between:

Timothy Middleton

Appellant

and

Her Majesty The Queen

Respondent

Coram: McLachlin C.J. and Binnie, LeBel, Fish, Charron, Rothstein and Cromwell JJ.

Reasons for Judgment: (paras. 1 to 54)

Concurring Reasons: (paras. 55 to 60)

Reasons Dissenting in Part: (paras. 61 to 113)

Fish J. (McLachlin C.J. and LeBel, Charron and Rothstein JJ. concurring)

Binnie J.

Cromwell J.

R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674

Timothy Middleton Appellant

v.

Her Majesty The Queen Respondent

Indexed as: R. v. Middleton

Neutral citation: 2009 SCC 21.

File No.: 32138.

2009: January 20; 2009: May 22.

Present: McLachlin C.J. and Binnie, LeBel, Fish, Charron, Rothstein and Cromwell JJ.

on appeal from the court of appeal for ontario

Criminal law — Sentencing — Intermittent sentences — Conditional sentences — Accused convicted of assault causing bodily harm, uttering a death threat and pointing a firearm and receiving 90‑day sentence of imprisonment to be served intermittently plus two concurrent 18‑month conditional sentences to be served in community plus probation — Whether imposition of conditional sentence of more than 90 days renders intermittent sentence illegal — Whether intermittent sentence must be served on consecutive days — Whether conditional sentence is “sentence of imprisonment” within meaning of s. 732(1) of Criminal Code — Criminal Code, R.S.C. 1985, c. C‑46, s. 732(1), (3) — Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 139.

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 (Cromwell J. dissenting in part): The appeal should be allowed and the sentences imposed by the trial judge affirmed.

Per McLachlin C.J. and LeBel, Fish, Charron and Rothstein JJ.: 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. [6] [8] [10‑11] [14] [27]

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. [7] [29‑34]

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. [36] [39-40]

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. [45‑47] [53]

Per Binnie J.: It is unnecessary to resolve the controversy over the scope and application of s. 139 of the Corrections and Conditional Release Act. The narrow issue on this appeal can and ought to be decided narrowly. The availability of an intermittent sentence in this case depends on s. 732(1) of the Criminal Code. By its terms s. 732(1) presupposes that a sentence within its purview can be served intermittently. Although conditional sentences are sentences of imprisonment without incarceration, they do not lend themselves to being served intermittently. On the face of it, therefore, s. 732(1) has no application to, and does not bar, the conditional sentences in this case. The “sentence of imprisonment” referred to in the opening words of s. 732(1) is the same “sentence” as “the sentence” mentioned elsewhere in the subsection. If the later references do not (because they cannot) include a conditional sentence, then the opening reference also excludes conditional sentences. There is no need to attribute different meanings to the same word in the same subsection. Since textually and contextually s. 732(1) does not extend to conditional sentences, the issue of a merger of the sentences in this case to form a single period of imprisonment does not arise. Accordingly the Corrections and Conditional Release Act has no application. The conditional sentences imposed by the trial judge were lawful. [55‑59]

Per Cromwell J. (dissenting in part): The intermittent sentence was illegal and should be set aside. The parties agree that if a conditional sentence is a "sentence of imprisonment" in s. 732(1), then an intermittent sentence is not available in this case because, as a result of s. 139 of the Corrections and Conditional Release Act, the sentences in this case merge to form a single period of imprisonment that exceeds 90 days. The words “sentence of imprisonment” include a conditional sentence of imprisonment. The power in s. 732(1) to order that a sentence of imprisonment be served intermittently is limited to sentences of imprisonment of 90 days or less. Accepting the parties’ premise, as a result of s. 732(1) of the Criminal Code, a 90‑day portion of the merged sentence cannot be served intermittently. [61] [63] [76] [102‑103]

The question of whether a sentence is a sentence of imprisonment is distinct from the question of how that sentence is to be served. While imprisonment generally results from a sentence of imprisonment, not all sentences of imprisonment result in the offender being imprisoned while serving that sentence. A conditional sentence is a sentence of imprisonment which the court directs to be served in the community. The manner in which the sentence is served does not alter its nature as a sentence of imprisonment. This distinction is important for the interpretation of s. 732(1). This provision is engaged only if “the court imposes a sentence of imprisonment of ninety days or less”. These words refer to the nature of the sentence. The Criminal Code treats the conditional aspect of a conditional sentence, that it be served in the community, as relating to the manner in which the sentence of imprisonment is to be served. Where Parliament intends that the words “sentence of imprisonment” and equivalent expressions exclude conditional sentences, it uses language placed in a context which makes this clear. There is no such contrary indication in s. 732. Nothing in the text or context of s. 732(1) would justify a departure from the grammatical and ordinary meaning of the words “sentence of imprisonment” in that section. [70‑71] [73‑74] [80] [101]

The Court of Appeal erred not only in holding that the intermittent sentence was legal, but also in concluding that it had to be served on consecutive days by virtue of s. 732(3) of the Code. The Court of Appeal’s interpretation of s. 732(3) gives inconsistent meanings to the words “sentence of imprisonment” within s. 732. It also makes too much turn on the order in which sentences are imposed. To have the application of the section turn on the many chronological possibilities that may occur in the sentencing process would make its operation arbitrary and impractical. Finally, this approach thwarts the clear intent of the sentencing judge. Where, as here, a sentencing judge imposes an intermittent sentence and, as part of the same sentencing hearing, imposes another sentence of imprisonment that can legally be combined with it, it should be inferred that the sentencing judge has “otherwise order[ed]” and that the intermittent sentence is to be served intermittently. [105] [108‑110]

Cases Cited

By Fish J.

Considered: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Fletcher (1982), 2 C.C.C. (3d) 221; R. v. Aubin (1992), 72 C.C.C. (3d) 189; R. v. McLeod, [1993] Y.J. No. 17 (QL); R. v. Drost (1996), 172 N.B.R. (2d) 67; R. v. Frechette, 2001 MBCA 66, 154 C.C.C. (3d) 191; R. v. Squibb, 2006 NLCA 9, 253 Nfld. & P.E.I.R. 285; R. v. Robert, 2007 QCCA 515, [2007] Q.J. No. 2821 (QL); R. v. Power (2003), 176 C.C.C. (3d) 209; referred to: Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; R. v. Carrignan (2003), 172 C.C.C. (3d) 1; R. v. Vajdl, 2004 MBQB 167, 186 Man. R. (2d) 149; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Lyver, 2007 ABCA 369, 229 C.C.C. (3d) 535.

By Cromwell J. (dissenting in part)

R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Fletcher (1982), 2 C.C.C. (3d) 221; R. v. Aubin (1992), 72 C.C.C. (3d) 189; R. v. McLeod, [1993] Y.J. No. 17 (QL); R. v. Drost (1996), 172 N.B.R. (2d) 67; R. v. Frechette, 2001 MBCA 66, 154 C.C.C. (3d) 191; R. v. Squibb, 2006 NLCA 9, 253 Nfld. & P.E.I.R. 285; R. v. Robert, 2007 QCCA 515, [2007] Q.J. No. 2821 (QL); Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; R. v. Power (2003), 176 C.C.C. (3d) 209.

Statutes and Regulations Cited

Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 99(1) “offender”, 120.2(1), 127(1), 128(1), 130(3.2), (3.3), 139.

Criminal Code, R.S.C. 1985, c. C‑46, ss. 718.2(e), 719(4), (5), 731, 732, 742, 742.1, 742.6, 742.7, 743.3.

Parole Act, R.S.C. 1970, c. P‑2, s. 14(1).

Parole Act, R.S.C. 1985, c. P‑2, s. 2 “inmate”.

Authors Cited

Canada. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 68, 1st Sess., 35th Parl., November 30, 1995, pp. 68:4, 68:6.

APPEAL from a judgment of the Ontario Court of Appeal (Weiler, Gillese and LaForme JJ.A.), 2007 ONCA 538, 227 O.A.C. 59, [2007] O.J. No. 2900 (QL), 2007 CarswellOnt 4722, varying a sentence imposed by Waugh J., 2006 CarswellOnt 9388. Appeal allowed, Cromwell J. dissenting in part.

Gregory Lafontaine and Vincenzo Rondinelli, for the appellant.

Andrew Cappell and Alexandra Campbell, for the respondent.

The judgment of McLachlin C.J. and LeBel, Fish, Charron and Rothstein JJ. was delivered by

Fish J. —

I

[1] The appellant, Timothy Middleton, was convicted at trial for having committed an assault causing bodily harm to his partner at the time, Lisa Dubreuil. For that offence, he was sentenced to 90 days’ imprisonment, to be served intermittently. Mr. Middleton was convicted as well for having uttered a death threat and for pointing a firearm some five months after the assault. And for those offences, he received 18-month conditional sentences of imprisonment, to be served concurrently, followed by probation for the ensuing three years.

[2] It is conceded that all three sentences were legal in themselves. It is conceded as well that they were carefully crafted by the trial judge in compliance with the sentencing principles and the correctional objectives applicable in the circumstances of this case. Neither the appellant nor the respondent has drawn to our attention a single provision of the Criminal Code, R.S.C. 1985, c. C-46, that prohibited either the intermittent sentence or the concurrent conditional sentences when each was imposed. Nor has our attention been drawn to a single judgment by any Canadian court precluding the combination of sentences imposed by the trial judge in this case.

[3] Justice Cromwell nonetheless finds that the intermittent sentence was rendered illegal by the conditional sentences in light of a sentence calculation provision set out in a different statute for purposes that, as we shall presently see, have no application here.

[4] My colleague’s reasons may be briefly summarized this way. Intermittent sentences are governed by s. 732 of the Criminal Code. In virtue of s. 732(1), the court may order that a sentence of imprisonment be served intermittently where the term imposed does not exceed 90 days. Conditional sentences are sentences of imprisonment. Section 139 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”), requires that the 90-day intermittent sentence and the 18-month conditional sentences imposed in this case be “merged” — or amalgamated — to form a single sentence of 18 months’ duration. Since this merged sentence exceeds the 90-day maximum permitted by s. 732(1), the intermittent sentence imposed by the trial judge was retrospectively rendered illegal by the subsequent imposition of the conditional sentences, though the conditional sentences were themselves both legal and fit.

[5] It will immediately be recognized that the result proposed by Justice Cromwell would only be warranted if both of its essential premises are correct: first, that a conditional sentence is a sentence of imprisonment within the meaning of s. 732(1); and second, that s. 139 of the CCRA requires that the intermittent and conditional sentences imposed by the trial judge be treated, for the purposes of s. 732(1), as a single sentence of imprisonment.

[6] In my respectful view, neither proposition withstands scrutiny. To hold that a conditional sentence is a sentence of imprisonment within the meaning of s. 732(1) of the Criminal Code and s. 139 of the CCRA is to disregard the plain wording of the provisions, their legislative purposes, and the nature and object of conditional sentences. It would disregard as well the valid sentencing objectives of the trial judge in this case and would unnecessarily, in the future, deprive judges of their ability to render similarly fit sentences where they conclude that a custodial sentence is required.

[7] For the reasons that follow, I have concluded that conditional sentences are not contemplated by either s. 732(1) of the Criminal Code or s. 139 of the CCRA, and that s. 139 has no application to the intermittent sentence imposed in this case.

II

[8] The decisive question on this appeal is whether the imposition of a conditional sentence of more than 90 days renders illegal an unexpired intermittent sentence imposed on the same offender but for a different offence. As I have already indicated, that question can only be answered in the affirmative if we conclude, first, that a conditional sentence is a “sentence of imprisonment” within the meaning of s. 732(1) of the Criminal Code; and second, that s. 139 of the CCRA applies to both conditional and intermittent sentences.

[9] Section 732(1) reads:

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.

[10] It is apparent from the words “confinement” and “prison” that s. 732(1) contemplates custodial sentences of imprisonment and not conditional sentences of imprisonment, which are served in the community. In my view, this textual consideration is alone sufficient to warrant the conclusion that conditional sentences are not “sentences of imprisonment” within the meaning of s. 732(1).

[11] In arriving at an opposite conclusion, Justice Cromwell relies on the principle of statutory interpretation which favours giving a word or phrase “the same interpretation or meaning whenever it appears in an act”, unless “the contrary is clearly indicated by the context” (Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at p. 400). Applying this same rule of interpretation, it seems to me plain that a conditional sentence is not a “sentence of imprisonment” within the meaning of s. 732(1). As mentioned at the outset, s. 732(1)(b) contemplates sentences that are served “in confinement” and probation orders “on release from prison after completing the intermittent sentence”. Conditional sentences are, by definition, meant to be served in the community and not in prisons. To conclude that they are sentences of imprisonment within the meaning of s. 732(1) is thus inconsistent with a purposive and contextual interpretation of the provision, and also the express terms adopted by Parliament in providing for intermittent sentences.

[12] In my respectful view, we cannot reasonably hold that a conditional sentence is a sentence of imprisonment for some purposes under s. 732(1) (such as determining an offender’s eligibility for an intermittent sentence), but not for others (such as permitting the intermittent service of a conditional sentence). And without straining the plain language of s. 732(1), we cannot reasonably find that a conditional sentence is a sentence of imprisonment for all purposes of s. 732, as urged by the appellant.

[13] To conclude that conditional sentences are sentences of imprisonment within the meaning of s. 732(1) is inconsistent as well with the distinct and different purposes of conditional sentences on the one hand, and intermittent sentences on the other. Justice Cromwell has explained this well in relating why the trial judge was moved by different reasons and different sentencing objectives to impose conditional sentences for two offences and an intermittent sentence for the other (notably at paras. 68, 69 and 111). It is thus hardly surprising that no intermittent conditional sentences of imprisonment — an anomalous notion at best — have been brought to our attention.

[14] Moreover, contrary to the appellant’s submission, “imprisonment” in the phrases “sentence of imprisonment” and “term of imprisonment” does not bear a uniform meaning for all purposes of the Criminal Code. In several instances, these terms necessarily contemplate incarceration. Section 718.2(e), mentioned by the parties, is hardly the sole example. Section 732(1) must itself be taken as another since, as we have already seen, s. 732(1) refers explicitly to “confinement during the period that the sentence is being served” and “release from prison after completing the intermittent sentence”.

[15] Likewise, s. 719(4) provides that “a term of imprisonment . . . commences . . . on the day on which the convicted person is arrested and taken into custody under the sentence”. Section 719(5) is framed in analogous terms. Manifestly, conditional sentences of imprisonment are not terms of imprisonment within the meaning of either provision. The same is true of s. 743.3, which provides that “[a] sentence of imprisonment shall be served in accordance with the enactments and rules that govern the institution to which the prisoner is sentenced”. Here again, a conditional sentence can hardly be characterized as a “sentence of imprisonment” within the meaning of the provision.

[16] Section 742.7(1) is yet another instance where the Criminal Code speaks of imprisonment in a manner that can hardly include conditional sentences. A finding that it does would mean that a conditional sentence of imprisonment is suspended if, while it is being served, the offender receives a second conditional sentence of imprisonment. This can hardly be what Parliament intended.

[17] On the contrary, reading s. 742.7 as a whole, I think it obvious that Parliament has drawn a clear and sharp distinction in that section between a conditional sentence being served in the community, and a custodial period served for breach of a conditional sentence order. Where an offender is ordered under s. 742.6 of the Code to serve all or part of an unexpired conditional sentence in custody, this custodial period is explicitly treated in s. 742.7(3) as imprisonment for the purposes of s. 139 of the CCRA; the rest of the conditional sentence, served in the community, is not. If s. 139 were intended to apply to conditional sentences, s. 742.7(3) would be entirely superfluous. At the very least, it is clear in this light that s. 139 applies to conditional sentences only if they result in incarceration — and, even then, only to the custodial period. The conditional sentences in this case involve no custody at all.

[18] I am of course aware that the Court, in holding that “imprisonment” in s. 718.2(e) signifies “incarceration”, referred to the difference between the English and French versions of the Code: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 95. As pointed out at the hearing of this appeal, however, a purposive and contextual reading of s. 718.2(e) would necessarily have arrived at the same result in the absence of the mentioned linguistic inconsistency. As Justice Cromwell recognizes at para. 87 of his reasons, “reading the term ‘imprisonment’ in s. 718.2(e) as including a conditional sentence was exactly contrary to the obvious legislative intent” of Parliament in creating conditional sentences as an alternative to incarceration.

[19] And there is no conflict at all between the English and French versions in any of the other examples I have identified. Yet in every instance mentioned, “imprisonment” necessarily refers to “incarceration” — and not to conditional sentences served in the community.

III

[20] Justice Cromwell has introduced in his reasons a “critical” distinction (at para. 70) that appears to resurrect the Court’s rejection, with respect to conditional sentences specifically, of a “two-step” sentencing process: Proulx. Chief Justice Lamer, speaking for the Court, explained (at para. 52) that:

This two-step process does not correspond to the reality of sentencing. In practice, the determination of a term of imprisonment is necessarily intertwined with the decision of where the offender will serve the sentence. A judge does not impose a fixed sentence of “x months” in the abstract, without having in mind where that sentence will be served . . . . Furthermore, when a conditional sentence is chosen, its duration will depend on the type of conditions imposed. Therefore, the duration of the sentence should not be determined separately from the determination of its venue. [Emphasis added; citations omitted.]

[21] I have four brief comments regarding Justice Cromwell’s proposed distinction between a sentence and the manner in which it is to be served.

[22] First, this distinction was never raised by either the appellant or the Crown, nor considered by any court at any stage of the proceedings below. It is not mentioned at all in the factum of either party or the authorities they have cited, and was not referred to, explicitly or implicitly, by counsel before us — or by the Court — at the hearing of the appeal.

[23] Second, my colleague (at paras. 93 and 94) cites the reference to “the institution to which the prisoner is sentenced” in s. 743.3 of the Code as an example of qualifying language sufficient to indicate that “sentence of imprisonment” in that provision refers to custodial sentences only. If this is correct, as I believe it is, it can hardly be said that the references in s. 732(1)(b) to “confinement” and “release from prison” do not qualify the term “sentence of imprisonment” in precisely the same way. On my colleague’s own hypothesis, it follows that Parliament has qualified the term “sentence of imprisonment” in s. 732(1) to make clear that it contemplates custodial sentences only.

[24] Third, the proposed distinction is entirely academic in the context of this appeal, where the issue is whether a conditional sentence is a sentence of imprisonment within the meaning of s. 732(1) of the Criminal Code. Justice Cromwell agrees that a conditional sentence cannot be served intermittently. He nonetheless finds that “sentence of imprisonment” in s. 732(1) refers to both custodial and conditional sentences. My colleague rests this conclusion on his proposed distinction between a sentence of imprisonment and the manner in which it is served. But this distinction hardly explains why “sentence of imprisonment” in s. 732(1) — which concerns custodial sentences, since only custodial sentences can be served intermittently — refers to both custodial and conditional sentences.

[25] Finally, it is evident from the terms of the provision and from its very nature that s. 732(1) permits — and governs — the imposition of custodial terms of imprisonment, which alone may be served intermittently. This is apparent not only from the words “confinement” and “prison” that appear in s. 732(1), but also from the English and French versions of s. 732(2), read harmoniously.

[26] Section 732(2) provides:

(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.

(2) À la condition d’en informer au préalable le poursuivant, le délinquant qui purge une peine à exécution discontinue peut demander au tribunal qui a infligé la peine de lui permettre de la purger de façon continue.

[27] As we can see, “sentence of imprisonment” in the English version of s. 732(2) appears in the French version as “une peine à exécution discontinue”. Reading both versions together, it seems perfectly clear both from the terms used and from its legislative purpose that s. 732(2) contemplates custodial sentences only. Parliament can hardly have intended to provide that offenders serving conditional sentences can choose to serve those sentences either intermittently or on consecutive days.

[28] With respect, I would thus reject the distinction invoked by Justice Cromwell and would instead resolve the question that concerns us here on the textual, contextual and purposive basis outlined in these reasons. Interpreting s. 732(1) this way better conforms to the sentencing purposes and correctional objectives for which Parliament separately established intermittent and conditional sentences.

IV

[29] This brings me to s. 139 of the CCRA, considered purposively and in the context of this case. Section 139 is found in Part II of the Act, which deals with “Conditional Release, Detention and Long-Term Supervision”. None of these matters have any application at all to conditional sentences. Offenders subject to a conditional sentence order are not eligible for parole: Proulx, at para. 42. Nor are they in “detention” or under “long-term supervision” within the meaning of the CCRA.

[30] Moreover, when he received his conditional sentences, the appellant was “a person whose only sentence [was] a sentence being served intermittently pursuant to section 732 of the Criminal Code”. Section 99(1) of the CCRA excludes such persons from the definition of “offender” for the purposes of Part II of the Act — which of course contains s. 139(1). This alone, I should think, is sufficient to demonstrate that s. 139 of the CCRA is of no assistance whatever to the appellant in this case.

[31] It might be thought that s. 99(1) does not apply to s. 139(1), since s. 139(1) refers to a “person” serving a sentence and does not use the word “offender”. In virtue of s. 99(1), however, a “person” serving a sentence is an “offender” — that is what “offender” means. This is evident from the use of the term “offender” in ss. 120.2(1), 130(3.2) and 130(3.3) of the CCRA to refer to the “person” to whom s. 139(1) applies. And it is not without interest that s. 732 of the Criminal Code uses the words “person” and “offender” interchangeably.

[32] Quite apart from this exclusionary definition of offender, a purposive interpretation of s. 139(1) also militates against its application here. The object of the provision was well explained by the Director General of Corrections in the Department of the Solicitor General of Canada when the current s. 139(1) was being considered by the Standing Senate Committee on Legal and Constitutional Affairs:

So‑called “sentence calculation” is a bit of a misnomer. It refers to the way we calculate parole eligibility dates rather than sentences themselves, something which we found necessary given the multiple sentences that form an infinite combination of sentences, both concurrent and consecutive.

To deal with the complexity of sentences and the calculation of eligibility dates that allow us to administer sentences in a rational way, the technique of sentence‑merging was developed to establish a single set of eligibility dates on the total prison term comprised of however many sentences. To do that, the Corrections and Conditional Release Act, or CCRA, provides for all sentences to be merged into a single term.

(Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 68, 1st Sess., 35th Parl., November 30, 1995, at pp. 68:4 and 68:6 (emphasis added))

[33] In this regard, reference may be had as well to R. v. Carrignan (2003), 172 C.C.C. (3d) 1 (Ont. C.A.), where, after considering the purpose and legislative history of s. 139 of the CCRA and its predecessors, Cronk J.A. (Catzman J.A. concurring) concluded:

Accordingly, the historical antecedents of s. 139 of the CCRA confirm, as urged by the amicus curiae in this case, that the device of sentence merger was intended to facilitate sentence calculation for sentence administration purposes. As emphasized by the then Solicitor General of Canada in 1995, it was not intended to “change the way consecutive and concurrent sentences work together”. [para. 36]

And again:

In my view, the combined effect of ss. 139(1) and (2) of the CCRA in connection with consecutive sentences is to ensure, for parole eligibility purposes, that the term of imprisonment of each consecutive sentence is totalled and parole eligibility is calculated based on the total term of the merged sentence. The intent and ambit of the sections are directed to that outcome, and to no broader purpose. [para. 49]

(Emphasis added in both paragraphs.)

[34] In short, Parliament enacted s. 139 to simplify the calculation of multiple custodial sentences in order to facilitate the administration of parole and statutory remission. Thus understood, s. 139(1) is inapplicable to a conditional sentence served in the community which — as the Court held in Proulx — is not “subject to reduction through parole” (para. 42).

[35] Justice Cromwell mentions (at para. 103) that “the parties were not in disagreement about the effect of this provision and their arguments were premised on its application to conditional sentences”. In fact, neither the appellant nor the respondent mentioned s. 139 at all in either their written or oral submissions in this Court. Their arguments turned instead on whether a conditional sentence is a “sentence of imprisonment” within the meaning of s. 732(1). The appellant argued that it is; the respondent, that it is not. As I have already made plain, I agree with the respondent and, in my view, that alone is sufficient to dispose of the appeal.

V

[36] In this case, the trial judge pronounced the intermittent sentence before the conditional sentences. The Court of Appeal held that both the intermittent and conditional sentences were entirely legal, but that the appellant was nonetheless required, in virtue of s. 732(3), to serve the intermittent sentence on consecutive days, rather than intermittently, as ordered moments earlier by the trial judge.

[37] Section 732(3) provides:

(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.

[38] Justice Cromwell concludes that the Court of Appeal erred in finding that the trial judge did not “otherwise orde[r]”, within the meaning of s. 732(3). Not only were the intermittent and conditional sentences handed down by the same judge on the same day in a single set of reasons, but the trial judge also made clear his intention that the intermittent sentence be served intermittently, notwithstanding the conditional sentences imposed on the other counts. The reasons of the trial judge would thus satisfy the requirement of s. 732(3) to “otherwise orde[r]” — if s. 732(3) applied, as a matter of law, to conditional sentences.

[39] I agree with the Crown that it does not. A purposive and contextual reading of “sentence of imprisonment” in s. 732(3) makes clear that it does not contemplate conditional sentences at all. As Sinclair J. observed in R. v. Vajdl, 2004 MBQB 167, 186 Man. R. (2d) 149, at para. 11:

Clearly, it must have been the intention of Parliament that an intermittent sentence should not be converted to straight time upon the imposition of a conditional sentence. The intent of an intermittent sentence and a conditional sentence are the same — to allow the accused to serve his sentence in the community to the fullest extent possible.

In short, a conditional sentence is not a “sentence of imprisonment” within the meaning of s. 732(1), (2) or (3).

[40] As a matter of principle, I agree with Justice Cromwell that nothing in this appeal should turn on the order in which the sentences were pronounced. But this hardly favours the appellant’s case. On the appellant’s view, a 90‑day intermittent sentence can be rendered illegal by the imposition in its final hours of another sentence of imprisonment (conditional or otherwise) of more than a single day. The intermittent sentence, legal when imposed and final for all legal purposes (never having been set aside on appeal), would in this example be almost entirely served, yet retroactively invalidated by a subsequent sentence for a different offence. Any different sequence of sentences leading to the same result would produce equally absurd effects, contrary to the “well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 27).

VI

[41] Finally, a brief word regarding the four decisions cited by Justice Cromwell in support of the proposition that “it is the total length of the merged sentences that governs eligibility for an intermittent sentence” (para. 76) (R. v. Fletcher (1982), 2 C.C.C. (3d) 221 (Ont. C.A.); R. v. Aubin (1992), 72 C.C.C. (3d) 189 (Que. C.A.); R. v. McLeod, [1993] Y.J. No. 17 (QL) (C.A.); and R. v. Drost (1996), 172 N.B.R. (2d) 67 (C.A.)).

[42] First, these decisions did not deal at all with the issue that concerns us here: none of them held that a 90-day intermittent sentence is rendered illegal by a contemporaneous or subsequent conditional sentence of any duration. All four cases, unlike the present matter, concerned consecutive custodial sentences cumulatively exceeding the 90-day limit for intermittent sentences established by s. 732(1) or its antecedents. None mentioned the exclusionary definition of offender set out in s. 99(1) of the CCRA, or its equivalent in predecessor statutes. Thus, for example, s. 2 of the Parole Act, R.S.C. 1985, c. P-2, defined “inmate” (“offender” in Part II of the CCRA) to exclude persons serving intermittent sentences. And while all four decisions did rely on s. 139(1) or its predecessors in striking down consecutive intermittent custodial sentences exceeding 90 days, this result was otherwise inevitable on a purposive and principled application of s. 732(1) of the Criminal Code.

[43] That is the approach I propose here. It is entirely compatible with the result reached in the four cases mentioned above and with the three others mentioned by my colleague at para. 76 of his reasons (R. v. Frechette, 200l MBCA 66, 2001 MBCA 66, 154 C.C.C. (3d) 191; R. v. Squibb, 2006 NLCA 9, 253 Nfld. & P.E.I.R. 285; R. v. Robert, 2007 QCCA 515, [2007] Q.J. No. 2821 (QL)). None of these cases held that a conditional sentence is a sentence of imprisonment within the meaning of s. 732 of the Criminal Code. Moreover, nothing I have said here has the effect of overruling any of the decisions mentioned by my colleague, in the sense of declaring any one of them to have been wrongly decided. On the contrary, I believe that the court reached the correct conclusion in all seven instances.

[44] I shall presently explain why this is true of the Fletcher line of cases. By analogy, the same is true of Frechette, Squibb and Robert: chaining conditional sentences that equal or exceed two years in the aggregate effectively transforms a penitentiary sentence into a series of sentences to be served in the community. A purposive reading of s. 742.1 of the Criminal Code prohibits this result: see Proulx, at para. 55. I thus find it hardly surprising that the Alberta Court of Appeal, since Frechette, Squibb and Robert were decided, arrived at the same result on a purposive interpretation of s. 742.1 — while expressly “question[ing] whether s. 139 of the Corrections and Conditional Release Act may be relied upon to regulate the granting of conditional sentences, as was suggested in Frechette”: R. v. Lyver, 2007 ABCA 369, 229 C.C.C. (3d) 535, at para. 11.

[45] Fletcher and its progeny would have arrived at the same result even in the absence of a provision similar to s. 139 of the CCRA, because the chaining of intermittent sentences beyond the 90-day limit established by Parliament defeats the very object of s. 732(1) and disregards the correctional principles that it was meant to serve. 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.

[46] That balance cannot be sustained indefinitely. Parliament has therefore fixed its duration at a reasonable limit of 90 days. Beyond that limit, intermittent sentences lose their purpose: the recurring “taste of jail” becomes disproportionately punitive as a deterrent and counter-productive as a rehabilitative and correctional alternative to continuous terms of imprisonment.

[47] It has not been suggested, on the other hand, that the combination of an intermittent and a conditional sentence — even when their aggregate duration exceeds 90 days — is similarly objectionable on any ground of correctional policy, or inconsistent with the sentencing principles enacted by Parliament in the governing sections of the Criminal Code.

[48] On the contrary, it is conceded that their combination in this case served the purposes of both intermittent and conditional sentences. This fit combination of sentences harmonizes the differing correctional advantages of conditional and intermittent sentences, while respecting the letter and the spirit of the provisions of the Criminal Code dealing with both: R. v. Power (2003), 176 C.C.C. (3d) 209 (Ont. C.A.).

[49] In Power, the accused had received a 90-day intermittent sentence for one offence and, for another, a consecutive 18-month conditional sentence followed by probation. Both sentences were affirmed on appeal. After considering their distinct purposes and combined effect, Doherty J.A. (Rosenberg and Armstrong JJ.A. concurring) concluded that the sentences were appropriate and endorsed the trial judge’s reasons for imposing them as “thorough and thoughtful” (para. 12).

[50] Power did not explicitly address the legality of the intermittent sentence affirmed in that case and is therefore of limited precedential value on that issue. But the legality of an impugned sentence is always before the court to which it has been appealed: In determining that a sentence is fit, the court implicitly confirms its legality.

[51] In this appeal, as in Power (at para. 12), “[t]he trial judge concluded, quite properly, that despite the positive features of the respondent’s character and background, principles of deterrence and denunciation required a period of incarceration” on at least one of the charges. After careful consideration, the trial judge in this case, again as in Power, ordered that the custodial sentence be served intermittently.

[52] In my respectful view, the conclusion to which Justice Cromwell is driven by his reasons is incompatible with the sentencing objectives of the trial judge and unduly limits the discretion of other trial judges to craft, in future cases, equally fit and thoughtful sentences.

[53] I conclude by emphasizing that conditional and intermittent sentences have overlapping but distinct purposes. I have already dealt with the sentencing and correctional purposes of intermittent sentences. With respect to conditional sentences, I am content simply to reiterate here this important passage from Proulx (at para. 41):

A conditional sentence may be as onerous as, or perhaps even more onerous than, a jail term, particularly in circumstances where the offender is forced to take responsibility for his or her actions and make reparations to both the victim and the community, all the while living in the community under tight controls.

This case illustrates how intermittent and conditional sentences can be effectively combined to take appropriate advantage of their complementary purposes — in full compliance with the statutory conditions by which they are respectively governed.

VII

[54] For all of these reasons, I would allow the appeal and affirm the sentences imposed by the trial judge.

The following are the reasons delivered by

[55] Binnie J. — The narrow issue on this appeal is whether the trial judge could lawfully impose a 90-day sentence of imprisonment to be served by the appellant intermittently, together with concurrent conditional sentences of 18 months. Without entering into the debate between my colleagues Justices Fish and Cromwell on the scope and application of the Corrections and Conditional Release Act, S.C. 1992, c. 20, and other related issues, I would allow the appeal on a short ground, as will be seen, and affirm the lawfulness of the intermittent sentence imposed by the trial judge.

[56] The availability of the intermittent sentence depends on s. 732(1) of the Criminal Code, R.S.C. 1985, c. C-46, which provides in part as follows:

732. (1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender . . . the court may, having regard to the age and character of the offender, . . . 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 . . . during the period that the sentence is being served . . . .

[57] I agree with Cromwell J. that the text of the Criminal Code and this Court’s jurisprudence make it clear that a conditional sentence of imprisonment is generally considered a “sentence of imprisonment” and therefore, at first blush, falls within the opening words of s. 732(1). It is imprisonment without incarceration. However, s. 732(1) provides an exceptional context because its application presupposes, in my view, that the “sentence of imprisonment”, referred to therein, is capable of being served intermittently. Yet conditional sentences, in their nature, do not lend themselves to being served intermittently. On the face of it, therefore, s. 732(1) seems to have no application to the conditional sentences in this case.

[58] To address this difficulty, my colleague Cromwell J. distinguishes between the introductory reference in s. 732(1) to “a sentence of imprisonment”, which he says includes a conditional sentence, and the other references in s. 732(1) to “the sentence” which he interprets as referring to a different mode of serving a sentence of imprisonment, i.e. intermittently rather than conditionally. I prefer a more straightforward reading of s. 732(1). I would hold that the “sentence of imprisonment” referred to in the opening words of s. 732(1) is the same sentence as “the sentence” also mentioned elsewhere in the subsection, including paras. (a) and (b). If the later references to “sentence” do not include a conditional sentence (as I believe to be the case) because a conditional sentence intermittently, the opening reference to “a sentence” also excludes conditional sentences. Conditional sentences therefore do not get in the door of s. 732(1) and, on this view, there is no need to attribute different meanings to the same word (“sentence”) in the same subsection. Textually and contextually, s. 732(1) simply does not extend to conditional sentences.

[59] That being the case, the issue of whether there is a “merger” of the three sentences at issue here to form a single period of “imprisonment of ninety days or less” does not arise. There was no possibility of merger because the conditional sentences were not within the s. 732(1) frame of reference and did not trigger its limitation. There is no issue that requires determination under the Corrections and Conditional Release Act. The trial judge’s 90-day intermittent sentence was lawful.

[60] On this narrow ground, I would allow the appeal and affirm the sentences imposed by the trial judge.

The following are the reasons delivered by

Cromwell J. (dissenting in part) —

1. Introduction and Issues

[61] This appeal concerns the interpretation of the intermittent sentence provisions of the Criminal Code, R.S.C. 1985, c. C-46. We are asked to decide whether the words “sentence of imprisonment” in s. 732(1) of the Code include a conditional sentence of imprisonment. The Criminal Code and this Court’s prior jurisprudence describe conditional sentences as sentences of imprisonment. To hold that a conditional sentence of imprisonment is a sentence of imprisonment gives effect to the grammatical and ordinary sense of the words used in the provision. In my respectful view, there is nothing in the context or scheme of the relevant legislation that suggests that we should give these words any other meaning.

[62] The appellant, Mr. Middleton, was sentenced at the same hearing to two special forms of imprisonment so that he could continue to work and contribute to his daughter’s support. He received a 90-day intermittent sentence of imprisonment to be served on weekends and two 18-month concurrent conditional sentences of imprisonment to be served in the community. He also received a period of probation, which is not in issue. The sentence gives rise to two issues.

[63] The first is whether an intermittent sentence was available. The Code gives courts the power to order that a sentence of imprisonment be served intermittently — for example on weekends — rather than on consecutive days. But the Code limits this power to sentences of imprisonment of 90 days or less. At issue is whether the 18-month concurrent conditional sentences of imprisonment which the judge imposed are sentences of imprisonment. The parties agree that if they are, an intermittent sentence was not available here because, taking the conditional sentences into account, the sentence of imprisonment imposed by the judge was longer than 90 days.

[64] The second issue arises because the judge imposed the intermittent sentence before imposing the concurrent conditional sentences. The Code provides that when a court imposes a sentence of imprisonment on a person who is subject to an intermittent sentence, the unexpired portion of the intermittent sentence will be served on consecutive days (in other words, not intermittently) unless the court otherwise orders. At issue is the effect of this provision in this case. Does it require that the intermittent sentence be served on consecutive days because the judge, having imposed a sentence of imprisonment on a person who was at that moment already subject to an intermittent sentence, did not expressly order otherwise?

[65] The Court of Appeal for Ontario held that while an intermittent sentence was available here, the Code requires that it be served on consecutive days because the judge did not expressly order otherwise (2007 ONCA 538, 227 O.A.C. 59). The appellant challenges the first conclusion and both the appellant and the respondent Crown dispute the second.

[66] I respectfully disagree with both of the Court of Appeal’s conclusions. My view is that the judge could not order an intermittent sentence here because the 18-month conditional sentences of imprisonment which he imposed are sentences of imprisonment. He therefore imposed a sentence of imprisonment of more than 90 days and the Code provides that, in these circumstances, an intermittent sentence cannot be imposed. As to the second issue, I am of the view that the sentencing judge should be understood to have ordered that the intermittent sentence (if legal) would continue to be served intermittently. The judge at the same hearing imposed an intermittent sentence and, virtually in the same breath, another period of imprisonment. In these circumstances, he should be understood to have directed that the intermittent sentence was to be served intermittently.

[67] I would allow the appeal.

2. Brief Overview of the Facts

[68] The judge in this case faced a difficult problem and he thought that an intermittent sentence of imprisonment was part of the solution. The judge found the offender, Mr. Middleton, guilty after trial of a number of acts of domestic violence arising from two incidents (2006 CarswellOnt 9387). The first, in September 2004, included an assault that left the appellant’s fiancée, who is the mother of his young daughter, with a broken clavicle. The second, in February 2005, included threats and pointing a pellet gun. The judge rightly sought to denounce and deter this sort of senseless brutality and to protect the appellant’s fiancée and others. But he was also concerned about the financial impact of a jail sentence on Mr. Middleton’s daughter. The judge did not want Mr. Middleton’s punishment to deprive his child of the court-ordered financial support he was capable of providing through his well-paid employment.

[69] In an attempt to give effect to these competing objectives, the judge imposed a 90-day period of imprisonment to be served intermittently for the assault and concurrent 18-month conditional sentences for the threatening and pointing of the pellet gun, all to be followed by three years of probation. This, the judge thought, would meet the need to impose “a real jail sentence” while at the same time allowing Mr. Middleton “to maintain [his] employment and to continue to support [his] daughter pursuant to the Court Order” (2006 CarswellOnt 9388, at paras. 6-7).

3. Analysis

A. Was an Intermittent Sentence Available?

(i) The Issue in Context

[70] There is a distinction that is critical to an understanding of the rather technical issues in this appeal. It is the distinction between the question of whether a particular sentence is, in law, a “sentence of imprisonment” and the question of how that “sentence of imprisonment” is to be served. In short, the distinction is between the nature of the sentence and the manner in which it is to be served. While imprisonment generally results from a sentence of imprisonment, not all sentences of imprisonment result in the offender being imprisoned while serving that sentence. The Criminal Code and the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA”), provide that sentences of imprisonment may be served in various ways. The critical point is that the manner in which the sentence is served does not alter its nature as a sentence of imprisonment. Contrary to my colleague Fish J.’s suggestion, the existence of this distinction is not inconsistent with the principle enunciated by this Court in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, that the duration of the sentence should not be determined separately from the determination of its venue. Rather, Proulx recognizes the distinction between the legal nature of the sentence as a sentence of imprisonment and an order respecting the manner in which it is to be served.

[71] Intermittent and conditional sentences of imprisonment are examples in the Code of how sentences of imprisonment may be served in different ways than in continuous custody. Section 732(1) of the Criminal Code allows a court to order that a sentence of imprisonment be served intermittently rather than on consecutive days. That the intermittent sentence is a manner of serving a sentence of imprisonment is clear from the text of the section: “Where the court imposes a sentence of imprisonment . . . the court may . . . order that the sentence be served intermittently . . .”. The intermittent sentence is available only where the court “imposes a sentence of imprisonment” and the intermittent aspect is an order as to how that sentence of imprisonment is to be served. Similarly, the conditional sentence of imprisonment is a sentence of imprisonment that is ordered to be served in the community. This is clear from the text of s. 742.1 of the Code. Where “the court imposes a sentence of imprisonment of less than two years . . . the court may . . . order that the offender serve the sentence in the community”. A conditional sentence is a sentence of imprisonment which the court directs to be served in the community.

[72] Parole and statutory release are examples under the CCRA where sentences of imprisonment may be served while not imprisoned. So, for example, we find in s. 127(1) that “an offender sentenced . . . to penitentiary is entitled to be released on the date determined in accordance with this section and to remain at large until the expiration of the sentence according to law”. In other words, the Act directs the manner in which the sentence of imprisonment is to be served and that the offender continues to serve the sentence of imprisonment while at large. Similarly, we find in s. 128(1) that an offender “who is released on parole, statutory release or unescorted temporary absence continues, while entitled to be at large, to serve the sentence until its expiration according to law”. This again shows that the statute governs how a sentence of imprisonment is to be served and that an offender who is subject to a sentence of imprisonment continues to serve that sentence while at large.

[73] This distinction between the nature of the sentence and the manner in which it is to be served is important for the correct interpretation of s. 732 of the Criminal Code, the section in issue in this appeal. It 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;

[74] The opening words of the section refer to the nature of the sentence: the section is engaged only if “the court imposes a sentence of imprisonment of ninety days or less”. These opening words of the section do not distinguish among the different ways in which a sentence of imprisonment may be served. Their focus is on the length of the “sentence of imprisonment” imposed.

[75] As noted earlier, the judge in this case imposed concurrent 18-month conditional sentences of imprisonment as well as the 90 days of imprisonment to be served intermittently. The question is whether s. 732(1) permits the combination of an intermittent sentence of incarceration with a conditional sentence where the total period exceeds 90 days.

[76] Before tackling this interpretative issue, I should note that the parties’ arguments in this Court proceed from a shared, undisputed premise: If the conditional sentences imposed by the judge are sentences of imprisonment, they merge with the 90-day period to form a single period of imprisonment which, of course, exceeds 90 days. The appellant points out in his factum, at para. 36, that “[s]entencing jurisprudence regarding s. 732(1) and the section’s predecessor, has long established that two separate intermittent sentences cannot be made consecutive to each other if the aggregate sentence exceeds the Code’s ninety day maximum.” The appellate court decisions that the appellant cites as authority for this proposition turn on their interpretation of s. 14(1) of the Parole Act, R.S.C. 1970, c. P-2, and its successor provisions, now s. 139 of the CCRA: R. v. Fletcher (1982), 2 C.C.C. (3d) 221 (Ont.); R. v. Aubin (1992), 72 C.C.C. (3d) 189 (Que.); R. v. McLeod, [1993] Y.J. No. 17 (QL); R. v. Drost (1996), 172 N.B.R. (2d) 67. Where, as in these cases, an offender who is subject to a sentence receives an additional sentence, it is the total length of the merged sentences that governs eligibility for an intermittent sentence. The Crown took no issue in its factum with this interpretation or with the correctness or relevance of these authorities. I am aware of no case law inconsistent with the position that the parties have taken with respect to the application of s. 139 in this context and note that it has been held by at least three courts of appeal that s. 139 of the CCRA applies to conditional sentences: see R. v. Frechette, 2001 MBCA 66, 154 C.C.C. (3d) 191; R. v. Squibb, 2006 NLCA 9, 253 Nfld. & P.E.I.R. 285; R. v. Robert, 2007 QCCA 515, [2007] Q.J. No. 2821 (QL). I will therefore accept the parties’ shared premise as correct. I should add that the implications of s. 139 in other contexts have not been argued and are not before us.

[77] The parties’ premise is that, if the 18-month conditional sentence imposed by the judge in this case are sentences of imprisonment within the meaning of s. 732(1), it merged with the 90-day sentence of imprisonment imposed by the judge with the result that there is, for the purposes of determining eligibility for an intermittent sentence under the Code, one sentence of imprisonment of more than 90 days. That is why, from the parties’ perspective, the issue concerning the legality of the 90-day intermittent sentence in this case turns solely on whether the “sentence of imprisonment” described in s. 732 of the Criminal Code includes a conditional sentence.

(ii) Is a Conditional Sentence a “Sentence of Imprisonment”?

[78] This Court has often reiterated its preferred formulation of the modern principle of statutory interpretation: “. . . the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21.

[79] I turn first to the grammatical and ordinary sense of the words “sentence of imprisonment” in order to determine whether these words as used in s. 732(1) of the Code include a conditional sentence of imprisonment. I conclude that the Criminal Code establishes, and the jurisprudence of this Court confirms, that a conditional sentence of imprisonment is indeed a sentence of imprisonment.

[80] The Criminal Code refers to the conditional sentence as a “Conditional Sentence of Imprisonment”: see the heading before s. 742. In addition, the Code provides that a conditional sentence of imprisonment is only available where “the court imposes a sentence of imprisonment of less than two years”: see s. 742.1. The court imposes a sentence of imprisonment and orders that it be served in the community. The text of the Code treats the conditional aspect of the sentence — that is, the order that the sentence of imprisonment be served in the community — as relating to the manner in which the sentence of imprisonment is to be served. That order does not detract from the fact that the sentence imposed is, as the section says, a sentence of imprisonment.

[81] In Proulx, the Court affirmed the importance of the grammatical and ordinary sense of the words “sentence of imprisonment” in s. 742.1 and in the heading before s. 742 and confirmed that conditional sentences are sentences of imprisonment, noting at para. 29 that:

The conditional sentence is defined in the Code as a sentence of imprisonment. The heading of s. 742 reads “Conditional Sentence of Imprisonment”. Furthermore, s. 742.1(a) requires the court to impose a sentence of imprisonment of less than two years before considering whether the sentence can be served in the community subject to the appropriate conditions.

Similarly, in R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, Binnie J. referred to Proulx, and noted that “[a] conditional sentence is a sentence of imprisonment, albeit the sentence is served in the community. It is imprisonment without incarceration” (para. 25).

[82] The opening words of s. 732(1) limit the cases in which a judge can order that a sentence of imprisonment be served intermittently to those “[w]here the court imposes a sentence of imprisonment of ninety days or less”. In light of the text of the Criminal Code, as interpreted in this Court’s decisions in Proulx and Wu, the ordinary and grammatical sense of the words “sentence of imprisonment” includes a conditional sentence. The question is then whether the entire context in which the words appear imposes a limit that is not clear from the grammatical and ordinary sense of the words used. Given Parliament’s express reference to conditional sentences as sentences of imprisonment, affirmed by this Court’s jurisprudence, it would require compelling contextual indications to establish that a conditional sentence of imprisonment is not a sentence of imprisonment for the purposes of a particular section.

[83] My colleague Fish J. suggests that the wording of s. 732 makes clear that the term “sentence of imprisonment” in that section must refer to incarceration. This is said to flow from s. 732(1)(b), which directs 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”. However, the text of the section shows, in my view, that this point should not be accepted. Respectfully, the references in s. 732(1)(b) to “confinement” and “prison” have no bearing on the issue before us. I will explain.

[84] An intermittent sentence is a “sentence of imprisonment”. The manner in which it is served is by the offender being in custody at specified times rather than on consecutive days. It is therefore necessary to provide directions as to when the offender will be in custody and when he or she will not. The words relating to confinement and prison in s. 732(1)(b) are used in connection with the manner in which the sentence of imprisonment is to be served. These sorts of directions as to how an intermittent sentence of imprisonment is to be served have no bearing on whether a conditional sentence of imprisonment is a sentence of imprisonment within the opening words of s. 732(1).

[85] Including a conditional sentence of imprisonment within the words “sentence of imprisonment” in s. 732 does not permit an order that a conditional sentence be served intermittently. As I have said earlier, the intermittent sentence order and the conditional sentence order direct different ways of serving a sentence of imprisonment. They must be understood as being alternative ways of serving a sentence of imprisonment. There is no authority in the Code for combining (and no reason that I can think of for wanting to combine) these two different ways of serving a sentence of imprisonment.

[86] Turning to the broader statutory context, the Crown bases its interpretative argument on this Court’s interpretation of s. 718.2(e) in Proulx. That section directs a court imposing a sentence to consider “all available sanctions other than imprisonment that are reasonable in the circumstances”. The Court in Proulx held that the term “imprisonment” in s. 718.2(e) should be understood to refer to actual incarceration. In other words, the term “imprisonment” in s. 718.2(e) should be understood to refer to the manner in which the sentence is to be served — i.e. in prison — rather than to the nature of the sentence itself — i.e. a “sentence of imprisonment”. The Crown submits that we should apply the same interpretation of “imprisonment” in s. 732. The Crown’s argument in my respectful view misapprehends the nature of the interpretive exercise in Proulx and overlooks the distinction between the nature of a sentence and the manner in which it is to be served.

[87] The Court in Proulx was faced with equally authoritative English and French versions of s. 718.2(e), only one of which made sense in context, given Parliament’s intention to reduce the rate of incarceration in Canada. The use of the word “imprisonment” in the English version, if interpreted as including a conditional sentence order that a sentence of imprisonment be served in the community, would have precluded the use of conditional sentence orders to achieve that objective. The French text of the section, however, made it clear this was not Parliament’s intent. It directed “l’examen de toutes les sanctions substitutives applicables qui sont justifiées dans les circonstances”. In short, the conflict between the two official language versions of the provision, coupled with the fact that reading the term “imprisonment” in s. 718.2(e) as including a conditional sentence was exactly contrary to the obvious legislative intent, made it clear that the term “imprisonment” in the English version of s. 718.2(e) should be understood to refer to the manner in which the sentence of imprisonment was to be served rather than to all sentences of imprisonment, no matter how served. As Lamer C.J. explained:

The use of “sanctions substitutives” for “sanctions other than imprisonment” in the French version of this provision means that s. 718.2(e) plays a role not only in the decision as to whether imprisonment or probationary measures should be imposed (preliminary step of the analysis), but also in the decision as to whether to impose a conditional sentence of imprisonment since conditional sentences are clearly “sanctions substitutives” to incarceration.

The French version and the English version of s. 718.2(e) are therefore in conflict. In conformity with a long‑standing principle of interpretation, to resolve the conflict between the two official versions, we have to look for the meaning common to both: [citations omitted]. Accordingly, the word “imprisonment” in s. 718.2(e) should be interpreted as “incarceration” rather than in its technical sense of encompassing both incarceration and a conditional sentence. Read in this light, s. 718.2(e) clearly exerts an influence on the sentencing judge’s determination as to whether to impose a conditional sentence as opposed to a jail term. [paras. 94-95]

[88] In short, it is in the English version of s. 718.2(e) that the term “imprisonment” is used inconsistently unless narrowed to refer to the manner in which the sentence is to be served. This is clear when one examines the French text of the same provision. We have not been referred to any similar conflicts between the English and French versions with respect to the meaning of “imprisonment” elsewhere in the Code and the Crown properly concedes that there is no such conflict in s. 732.

[89] The appellant’s interpretation of s. 732, with which I agree, is supported by s. 731(1)(b) of the Code. That section authorizes a judge to impose a period of probation “in addition to . . . sentencing the offender to imprisonment for a term not exceeding two years”. The Crown concedes that a period of probation may be added to a conditional sentence and that this flows from the fact that the imposition of the probation order is authorized by s. 731(1)(b). (This was the basis on which the judge in this case could impose the probationary term to follow the conditional sentences.) It follows that the sentence of imprisonment contemplated by s. 731(1)(b) must include a conditional sentence of imprisonment. Otherwise (and contrary to the Crown’s concession), a sentencing judge would not be authorized to impose a period of probation in addition to a conditional sentence.

[90] If we were to accept the Crown’s position on this appeal, we would have to decide that a conditional sentence is included in the phrase “sentencing the offender to imprisonment” for the purposes of s. 731(1)(b) (as the Crown concedes), but that a conditional sentence is not a sentence of imprisonment for the purposes of the very next sentencing option in the Code, s. 732. I see no reason to conclude that Parliament intended such similar expressions — “sentence of imprisonment” and “sentencing . . . to imprisonment” — to have different meanings in these consecutive sentencing options in the Code. The provisions are even more similar in French: “. . . le tribunal peut . . . en plus . . . de le condamner à un emprisonnement maximal de deux ans . . .” in s. 731(1)(b) and “[l]e tribunal qui . . . le condamne à un emprisonnement maximal de quatre‑vingt‑dix jours . . .” in s. 732(1).

[91] A court ought to give the same meaning to the same words used within the same statute unless there is some good reason to think that Parliament did not intend to express itself consistently. As Cory J. put it in Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at p. 400: “Unless the contrary is clearly indicated by the context, a word should be given the same interpretation or meaning whenever it appears in an act.” With respect to the use of the very similar expressions in ss. 731 and 732 of the Code, we should conclude that they have the same meaning in consecutive sections of the same statute unless the contrary is clearly indicated by the context. There is no such contrary indication.

[92] As I have suggested, where Parliament intended to limit or qualify the expressions “sentence of imprisonment” or “imprisonment” so as to exclude conditional sentences of imprisonment, it did so by using language which made this exclusion clear in the context of the particular provision.

[93] Section 743.3 is an example. It expressly applies only to persons sentenced to sentences of imprisonment in an institution. Of course, it can have no application to persons who are ordered to serve their sentences of imprisonment in the community. The section provides simply that where an offender is sentenced to a sentence of imprisonment in an institution, the sentence is to be served in accordance with the enactments and rules that govern the institution to which he or she is sentenced:

743.3 A sentence of imprisonment shall be served in accordance with the enactments and rules that govern the institution to which the prisoner is sentenced.

[94] Specifying the type of “sentence of imprisonment” being addressed, as does this section, is consistent with the view that, absent such limitation or qualification, all sentences of imprisonment are being referred to. Section 743.3 shows that where some qualification of the generality of the term was intended in the Code, it is stated expressly.

[95] There are other instances in the Code in which Parliament has made clear that the words “sentence of imprisonment” or “imprisonment” refer only to incarceration. None of them detracts from the interpretation of s. 732 that the appellant proposes and with which I agree.

[96] Sections 719(4) and 719(5) provide one example. These provisions use the expression “term of imprisonment” and deal with the manner in which that term is to be served in custody. There is no inconsistency between recognizing that these provisions deal specifically with custodial sentences, as indicated through references to “the day on which the convicted person is arrested and taken into custody under the sentence” (s. 719(4)) or to the “execution of the warrant of committal” (s. 719(5)) and finding that the “sentence of imprisonment” referred to in s. 732(1) includes a conditional sentence of imprisonment.

[97] Section 742.7(1) provides another example of a provision in which the term “imprisonment” cannot include a conditional sentence. The section is at pains to distinguish between a person serving a conditional sentence of imprisonment and that person being imprisoned. Section 742.7(1) refers to the situation of a person subject to a conditional sentence order (which is an order that a sentence of imprisonment be served in the community) and the situation of that person when “imprisoned”. Section 742.6(9)(c) and s. 742.7(2) clearly distinguish between serving a sentence of imprisonment in the community and serving the sentence of imprisonment in custody. Section 742.7(4) carefully distinguishes between the service of a sentence in the community and serving it in custody. These provisions do not at all detract from the view that a conditional sentence of imprisonment is a manner of serving a sentence of imprisonment. As I have said earlier, imprisonment generally results from a sentence of imprisonment, but not all sentences of imprisonment result in imprisonment.

[98] The Crown submits that a different interpretation of “imprisonment” is merited in s. 732 because it would allow sentencing judges greater discretion to craft fit sentences tailored to the individual cases before them. However, it is simply not possible for me to say that a conditional sentence of imprisonment is not a sentence of imprisonment. But that is what the Crown’s position, if accepted, would require us to say.

[99] I accept, of course, that it is desirable that sentencing judges be able to exercise their discretion to craft the most fit sentence in every case. But that discretion is circumscribed by the limits imposed by the text of the Criminal Code and other relevant legislation. The fact that an intermittent sentence may appear appropriate in a particular case does not permit the courts to impose a sentence that parliament has not authorized. In short, we must respect and give effect to the parliamentary decision to limit the availability of intermittent sentences to sentences of imprisonment of 90 days or less.

[100] The Crown cites R. v. Power (2003), 176 C.C.C. (3d) 209 (Ont. C.A.), submitting that in that case the court upheld the combination of an intermittent sentence and a lengthy conditional sentence. However, the legality of the sentence was not before the court; neither of the parties challenged the legality of the combination of sentences and the court, understandably, did not consider the issue. The case does not support the Crown’s interpretation.

[101] So I conclude: First, the text of the Criminal Code and this Court’s jurisprudence specify that a conditional sentence of imprisonment is a “sentence of imprisonment”. Second, where Parliament intended that the words “sentence of imprisonment” and equivalent expressions exclude conditional sentences, it used language placed in a context which makes this clear. Third, there is nothing in the text or context of s. 732(1) which justifies a departure from the grammatical and ordinary meaning of the words “sentence of imprisonment” in that section.

[102] The judge in this case imposed a sentence of imprisonment of more than 90 days. As a result of s. 732(1) of the Code, he could not order that a 90-day portion of that sentence be served intermittently. The intermittent sentence was therefore illegal and must be set aside.

B. Section 139 of the Corrections and Conditional Release Act

[103] My colleague Fish J. would hold that s. 139 of the CCRA does not apply to conditional sentences. He states at para. 7 that “conditional sentences are not contemplated by . . . s. 139 of the CCRA” and at para. 34 that “s. 139(1) is inapplicable to a conditional sentence served in the community”. As noted earlier, the parties were not in disagreement about the effect of this provision and their arguments were premised on its application to conditional sentences. They have therefore had no opportunity to respond to the suggestion that their arguments in this Court were based on an erroneous premise.

[104] Respectfully, I see no reason to go behind the premise on which the parties advanced this appeal, namely that, as a result of s. 139 of the CCRA, if a conditional sentence is a sentence of imprisonment within the meaning of s. 732(1) of the Code, an intermittent sentence was not available here.

C. Does the Intermittent Sentence, if Legal, Have to Be Served on Consecutive Days?

[105] The Court of Appeal, while holding that the sentence was not illegal, concluded that the 90-day intermittent sentence had to be served on consecutive days by virtue of s. 732(3). I respectfully disagree with this conclusion as does my colleague Fish J. Of course, because I would hold that the sentence was illegal, it is not strictly necessary to address this question. However, the point has been fully argued and it will be useful to address it.

[106] Section 732(3) provides that “[w]here 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.” The Court of Appeal held that s. 732(3) applied in this case because, “[a]t the time that the sentencing judge imposed a sentence of imprisonment [i.e. the conditional sentences] . . . he had already sentenced [Mr. Middleton] to the intermittent sentence . . . . Section 732(3) has the effect of causing the unexpired portion of the intermittent sentence . . . to be served on consecutive days” (para. 21). In other words, the court held that s. 732(3) applied because of the order in which the sentencing judge imposed the sentences. He first imposed the intermittent sentence for one offence, then the conditional sentences for two additional offences. Thus, in the view of the Court of Appeal, when the judge imposed the conditional sentences, Mr. Middleton was at that point already “subject to an intermittent sentence in respect of another offence”. The judge failed to expressly order otherwise and, as a result, s. 732(3) operated to collapse the “unexpired portion” of the intermittent sentence imposed seconds before into a sentence to be served on consecutive days.

[107] Respectfully, this interpretation of s. 732(3) is problematic for at least three reasons.

[108] First, it gives inconsistent meanings to the words “sentence of imprisonment” within s. 732. The Court of Appeal found the intermittent sentence to be lawful. As discussed earlier, this could only be so if the conditional sentence were not sentences of imprisonment within the meaning of s. 732(1). However, the Court of Appeal also held that s. 732(3) was engaged here. This could only be so if the conditional sentences were sentences of imprisonment within the meaning of s. 732(3). For reasons already mentioned, this sort of inconsistent usage of the same words should not be ascribed to Parliament.

[109] Second, the Court of Appeal’s interpretation makes too much turn on the order in which sentences are imposed. On the court’s interpretation, s. 732(3) would not have been engaged had the judge imposed the sentences in the other order because, in that case, Mr. Middleton would not have been subject to an intermittent sentence when the conditional sentences were imposed. To have the application of the section turn on the many chronological possibilities that may occur in the sentencing process would make its operation arbitrary and impractical. We should be slow to attribute such an intent to Parliament.

[110] Finally, this approach to s. 732(3) thwarts the clear intent of the sentencing judge. It could not be clearer that the judge in this case intended the 90-day sentence of imprisonment to be served intermittently. Yet, because he failed to expressly order otherwise, the Court of Appeal held that s. 732(3) thwarted that clear intent. I cannot agree. Without attempting to address all of the variations that could result from the timing and order of sentencing, it seems to me that when a judge lawfully imposes an intermittent sentence and another sentence of imprisonment as part of the same sentencing proceeding, the judge should be understood to have relied on the closing words of s. 732(3) — that is, on the authority to “otherwise orde[r]” — so that the intermittent sentence does not become a sentence to be served on consecutive days. In other words, where a sentencing judge imposes an intermittent sentence and, as part of the same sentencing hearing, imposes another sentence of imprisonment that can legally be combined with it, I would infer that the sentencing judge has “otherwise order[ed]” and that the intermittent sentence is to be served intermittently.

[111] In this case, the sentencing judge tried to craft a sentence that would balance the goals of denunciation, deterrence and protection with his concern that the appellant’s daughter not suffer financial hardship. This manifested a clear intention that the intermittent sentence, imposed first, be served intermittently. Had the intermittent sentence as imposed been legal, the operation of s. 732(3) to collapse the intermittent sentence would have defeated the sentencing judge’s intention to impose what he considered a fit sentence that would allow the appellant to keep his job so as to be able to make support payments. Requiring the sentencing judge to specify that he meant it when, moments before, he imposed an intermittent sentence is, in my respectful view, to take a too formalistic approach to the words “otherwise orders” in s. 732(3).

D. What Sentence Should This Court Impose to Replace the Illegal Intermittent Sentence?

[112] While in my view, the intermittent sentence was unlawful in this case, the Court holds otherwise. It is therefore not necessary for me to address the question of what lawful sentence should be imposed.

4. Disposition

[113] I would allow the appeal and set aside the 90-day intermittent sentence as illegal. In light of the Court’s finding to the contrary, it is not necessary for me to decide what sentence ought to have been imposed in its place.

Appeal allowed, Cromwell J. dissenting in part.

Solicitors for the appellant: Lafontaine & Associates, Toronto.

Solicitor for the respondent: Attorney General of Ontario, Toronto.