SCC No. 33911
IN THE SUPREME COURT OF CANADA
(On Appeal from the Court of Appeal for British Columbia)
BETWEEN:
DAMON WILLIAM KNOTT and D.A.P.
APPELLANTS
(Appellants)
AND:
HER MAJESTY THE QUEEN
RESPONDENT
(Respondent)
There is a ban on publication on any information that could identify the complainants pursuant to
s. 486.4(1) of the Criminal Code with respect to D.A.P.
RESPONDENT'S FACTUM
(Pursuant to Rule 42 of the Rules of the Supreme Court of Canada)
Solicitor for the Appellant,
Damon William Knott:
Ottawa Agents for the Solicitor for the
Appellant, Damon William Knott:
ANNA KING
Barrister & Solicitor
100 - 141 Water Street
Vancouver, BC V6C lA7
Tel: (604) 801-6880
Fax: (604) 802-6883
Email: [email protected]
BRIAN A. CRANE, Q.c.
GOWLING LAFLEUR HENDERSON LLP
Suite 2600 - 160 Elgin Street
Ottawa, ON KIP lC3
Tel: (613) 786-0212
Fax: (613) 563-9869
Email: [email protected]
Solicitor for the Appellant, D.A.P.:
Ottawa Agents for the Solicitor for the
Appellant, D.A.P.:
ERIC PURTZKI
Barrister & Solicitor
302 - 560 Beatty Street
Vancouver, BC V6B 2L3
Tel: (604) 662-8167
Fax: (604) 608-1919
Email: [email protected]
BRIAN A. CRANE, Q.c.
GOWLING LAFLEUR HENDERSON LLP
Suite 2600 - 160 Elgin Street
Ottawa, Ontario KIP 1C3
Tel: (613) 786-0212
Fax: (613) 563-9869
Email: [email protected]
Solicitor for the Respondent:
Ottawa Agents for the Respondent's Solicitor:
MICHAEL J. BRUNDRETT
MINISTRY OF ATTORNEY GENERAL
Criminal Appeals
6th Floor - 865 Hornby Street
Vancouver, BC V6Z 2G3
Tel: (604) 660-1126
Fax: (604) 660-1133
Email: [email protected]
ROBERT HOUSTON, Q.C.
BURKE-ROBERTSON
Barristers & Solicitors
70 Gloucester Street
Ottawa, Ontario K2P OA2
Tel: (613) 236-9665
Fax: (613) 235-4430
Email: [email protected]
TABLE OF CONTENTS (i)
PAGE
PART I-OVERVIEW AND STATEMENT OF FACTS ............................................................. 1
Overview of the Respondent's Position ........................................................................................ 1
Statement of Facts .......................................................................................................................... 2
Reasons of the Court of Appeal ................................................................................................... 8
PART II -- RESPONDENT'S POSITION ON APPELLANTS' QUESTIONS .................... 11
PART III-ARGUMENT ................................................................................................................. 12
(A)
Section 731 of the Criminal Code Does Not Support the Two Year Rule ................... 12
Section 731 (1) as a Basis of the Two Year Rule ............................................................... 12
Misplaced Characterization of Parliamentary Intent in s. 731 ........................................... 12
Section 731 Does Not Incorporate Other Sentences Imposed at Other Sittings ................ 15
The Appellants' Interpretation of s. 731 was Rejected by this Court in Mathieu ............. 16
The Appellants' Interpretation is Contrary to s. 719(1) ................................................... 17
Language Supporting Sentence Merger Not Used in s. 731 ............................................. 18
Probation Useful Even After More than Two Years in Custody ....................................... 18
The Principles of Sentencing Support the Wide Availability of Probation ...................... 19
The Availability of Other Control Mechanisms is Irrelevant .......................................... .20
(B)
Section 139 ofthe CCRA Does Not Support the Two Year Rule ................................ 21
Section 13 9 ofthe CCRA as a Basis for the Two Year Rule ............................................ .21
Middleton Effectively Rejects the CCRA as a Basis for the Two Year Rule ................... .22
Sentence Merger in the CCRA has an Administrative Context ......................................... 22
The History and Purpose of s. 139 ofthe CCRA Confirm Its Limited Scope .................. .24
Wording of the CCRA and Criminal Code ....................................................................... .26
S. 139(2) Specifically Limits the Application of Sentence Merger in s. 139(1}............... .27
(C)
The Absurdities of the Two Year Rule Should Inform the Interpretation
of the Underlying Statutory Provisions .................................................................. .28
The Traditional Approach to Sentence Merger Yields Absurd Results .......................... .28
Probation Orders That Lose Their Relevance May be Amended or Deleted ................... 35
(D)
The BCCA's Remanet Analysis Should Not Be Followed ........................................... 36
(E)
Conclusion ...................................................................................................................... 38
Application to the Appellant, Damon Knott .................................................................... .38
Application to the Appellant, D.A.P .................................................................................. 38
PART IV - SUBMISSIONS ON COSTS ...................................................................................... .40
PART V -NATURE OF THE ORDER SOUGHT ...................................................................... .40
PART VI-TABLE OF AUTHORITIES ...................................................................................... .41
PART VII - STATUTORY PROVISIONS .................................................................................. .43
PART I - OVERVIEW AND STATEMENT OF FACTS
Overview of the Respondent's Position
1.
The Appellants seek to restore the so-called "Two Year Rule" which for years has
retroactively extinguished and prospectively blocked much-needed probation orders where
individual terms of imprisonment imposed on different occasions collectively exceed two years.
This Rule has been consistently applied by the lower courts, often at the Crown's invitation or
concession. Yet, the illogical and arbitrary consequences of the Rule have become clear over
time and, as the British Columbia Court of Appeal (BCCA) concluded in the case at bar, its
foundations are inherently flawed. Consistent with this Court's recent interpretation of its
statutory roots, this excessive application of sentence merger -- by which a well thought-out
probation order on one matter can be invalidated by the imposition of an unrelated jail sentence
on another -- ought to be discarded in favour of a principled approach which promotes probation
as a non-custodial sentencing option.
2.
The Two Year Rule arose due to reliance on unsound interpretations of s. 731(1)(b) of
the Criminal Code alone, or (more commonly) in combination with s. 139 ofthe Corrections and
Conditional Release Act (CCRA)), for the substantive blending of sentences. Section 731 (1 )(b) of
the Criminal Code provides that a probation order can be imposed "in addition to fining or
sentencing the offender to imprisonment for a term not exceeding two years". The language of
the section does not support a rigid two year limit for the commencement of probation or
otherwise incorporate past or subsequent sentences into probation availability; and this Court in
R. v. Mathieu, [2008] 1 S.C.R. 723, 2008 SCC 21 has rejected the Appellants' argument in
favour of such an interpretation. Nor is there a proper basis to support a lingering restriction on a
sentencing judge's present ability to impose probation by incorporating the remanet or remaining
portion of an unexpired sentence, as the BCCA suggested in its decision in this case.
3.
Similarly, administrative sentence merger in s. 139 of the CCRA has often been applied to
substantively merge sentences and render probation orders "illegal." Yet, the history and purpose
of s. 139 confirm its operation was intended to be limited to facilitating sentence administration.
The BCCA, following this Court's decision in R. v. Middleton, [2009] 1 S.C.R. 674, 2009 SCC
21, held that s. 139 of the CCRA has application only to the calculation of sentence for the
purposes of administering parole and statutory remission by correctional authorities. Nothing in
2
the CCRA deals with imposition of a fit sentence, a function reserved exclusively for judges.
Administrative expediency ought not to jeopardize the fitness of a sentence.
4.
The two appeals before this Court involve potential application of the Two Year Rule. R.
v. Knott involves a repeat offender who received three year probation orders on two initial
concurrent sentences of 24 and 16 months, as well as a one year probation order on a subsequent
sentence. Under the Two Year Rule, the imposition of an additional six months incarceration one
week before his initial jail sentence was set to expire would reach forward and back in time to
nullify the probation orders imposed in the unrelated sentences.
R. v. D.A.P. involves an
appellant who received a conditional sentence order (CSO) for sexually assaulting his two stepchildren. Under the Rule, a two year probation order imposed at the same time would be
rendered invalid by a subsequent jail sentence imposed for his breaking into the home of his exspouse, the children's mother.
5.
Both cases demonstrate the difficulties with an inflexible rule which disturbs the fitness
of sentences by voiding probation orders attached to one component of a blended sentence. For
instance, under the Rule, even a short jail sentence added to an unexpired jail sentence extending
total imprisonment beyond two years can void a probation order attached the earlier sentence. As
well, the retroactive voiding of probation orders frustrates the objectives and rehabilitative tools
often carefully crafted by the original sentencing judge. And a judge who sentences an offender
already serving an unexpired sentence is unduly constrained by the inability to impose further
probation should the aggregate jail sentence exceed two years. Such incongruous consequences
in part led the BCCA to largely abandon the Two Year Rule, with the understanding that
application may always be made to vary or shorten a probation order where appropriate.
Statement of Facts
6.
The Respondent agrees with the Appellants' statement of facts but wishes to provide
further details in order to set out the context to the issues in these appeals.
7.
Background of the Appellant, Damon Knott. Mr. Knott, born March 6, 1982, suffered
physical and sexual abuse throughout his childhood. He developed severe behavioural issues at
a very young age, many of which continued into adulthood. His mother described him as a
3
chronic liar and chronic drug user who tends towards violence and weapons, making him a
danger to his own family.
Mr. Knott has very significant and long-term substance abuse
problems, most notably with crystal methamphetamine. He has an extensive criminal record
comprising (including the present offences) 39 convictions including assault or threatening
offences (8), property-related offences (17) and weapons-related offences (4), as well as
convictions for extortion, robbery and arson. [Reasons for Sentence (Reasons), August 18, 2005,
Appellants' Record (A.R.), pp. 6-7, mlll-14; Pre-Sentence Report, August 15,2005, Respondent's Record (R.R.),
pp.21-25] His most recent convictions related to his sentence appeal are as follows:
Aug. 18, 2005
Poss. Weapon
Break & Enter
Obstruct P.O.
Poss. Stolen Property
Aug. 18,2005
Break & Enter
Sept. 8, 2005
Poss. Stolen Property
Sept. S, 2005
Poss. Break-In
Instruments
Obstruct Peace Officer
Aug. 10, 2007*
}
}
}
Jail 24 months + probation 3 years
Jail 12 mo's concurrent + probation 3 years
Jail 16 mo's concurrent + probation 3 years
}
Jail 16 mo's concurrent + probation 3 years
}
Jail 6 months (no probation)
Assault of Peace Officer
*Jf merger applies, the sentence is extended and the 2005 probation orders are "illegal".
Aug. 17, 2007
Expiry of the original 24 month sentence (now extended)
Dec. 3, 2007**
Assault Causing
Bodily Harm
}
JailS months + probation 12 months
**Jfmerger applies, the sentence is extended and the 2007 probation order is "illegal"
Jan. 13, 2009
8.
Breach of Probation
(Sept. S, 2005 order)
}
Jail 60 days
On three different occasions, Mr. Knott received sentences with probation orders to
address his underlying chronic offending, all of which would be nullified by the Two Year Rule.
9.
The 2005 Surrey Charges. Mr. Knott pled guilty to charges of break and enter to a
residence, possession of a weapon (an axe) dangerous to the public peace, possession of stolen
identification, and obstruction of a police officer. The offences related to his breaking into a
home on the afternoon of April 10, 2005. The female home-owner encountered Mr. Knott
brandishing an axe in the kitchen. Mr. Knott fled when she screamed. When a police dog tracked
him down hiding nearby, he was found with stolen identification from a theft the previous
4
evening. Mr. Knott twice lied about his proper name when arrested. [Reasons, August 18, 2005,
A.R., pp. 3-5, ml6-8]
10.
For these offences, Mr. Knott was sentenced on August 18, 2005 by Raven P.C.J. in
Surrey Provincial Court to concurrent sentences of 24 months with probation for three years.
During submissions, the sentencing judge expressed concern that Mr. Knott should be subject to
further monitoring on probation following his sentence but was advised that probation would not
be available should the cumulative sentences exceed two years. [Transcript (T), August 18,2005, A.R.
pp. 153(14-29),154(14-47),156(10-35)] In imposing sentence, the sentencing judge stated as follows:
[19] What I am urged to do on behalf of Mr. Knott by his counsel is to consider that a straight
jail sentence in excess of two years means that no probation order can be attached to follow the
sentence. It leaves Mr. Knott in a situation where he will be paroled before the completion of the
sentence and beyond the 28 months, he is not followed in the community with respect to his
behaviour, and neither are services offered to him, or he is not required to obtain counselling
which he so obviously needs. [Reasons, August 18,2005, A.R. p. 9, ~19]
11.
The sentencing judge characterized the Crown's position of 30 months incarceration
(leaving 28 months after credit for time in custody) as "reasonable." [~18] She then reasoned that
although Mr. Knott's offences merited a federal jail sentence, the difference between a 28 month
sentence and a 24 month sentence was minimal.
[~20]
In holding that probation was desirable, the
sentencing judge stated:
[22] I also consider it important, not just for Mr. Knott's rehabilitation but for the benefit of
society, that he be closely followed by way of being required to report to a probation officer and
to continue substance abuse counselling and personal and mental health counselling beyond the
completion of that sentence.
[23] So what I am going to do is impose a sentence of 24 months, which I understand and intend
to be a federal sentence to be served in a federal institution. However, because it is not over two
years, I can add probation .... [Reasons, August 18,2005, A.R. pp. 10-11, ~~22-23]
12.
At the same hearing on August 18,2005, Mr. Knott was sentenced to one year concurrent
on a second charge of breaking and entering and probation for three years. That offence occurred
when, on March 20, 2005, Mr. Knott broke into a residence and stole identification from the
horne. Mr. Knott was identified through fingerprints left on the pried open window. [T, August 18,
2005, A.R. 141(8)-142(20)] In imposing sentence, the sentencing judge felt constrained to impose
concurrent time. Although she agreed the one year consecutive term suggested by Crown counsel
was reasonable, she was concerned that such a sentence would preclude probation: "I am not
going to do that, again because it seems to me the longest period of time that society can
5
maintain control over Mr. Knott is in the interests both of himself and society ... " [Reasons, August
19,2005, AR. 13, 'Il36]
13.
The 2005 North Vancouver Charges. Three weeks later, on September 8, 2005, Mr.
Knott pled guilty in North Vancouver Provincial Court to charges of possession of stolen
property, possession of break-in instruments, and obstructing a police officer. The P.S.P. charge
involved Mr. Knott being found by police driving a stolen vehicle on the afternoon of March 14,
2005. The other offences occurred on April 6, 2005 when police, responding to a complaint of a
suspicious man hiding under a van in a parking lot, found Mr. Knott hiding a short distance
away. He was found with screwdrivers and a multi-use tool used to break into cars, and he gave
an incorrect name to police. In suggesting a 12-16 month term, the Crown stated,
. .. Mr. Knott ... has recently been sentenced to two years imprisonment, with a three year
probation term. It's certainly open for the Crown in this case to ask for consecutive time.
However, Your Honour, what I don't want to do is invalidate the probation orders ... and the time
imprisonment (sic) in excess of a concurrent term would invalidate those probation orders. [T,
September 8,2005, AR. p. 163(8-21)] [Emphasis added]
14.
Moss P.C.J. issued a stem warning to Mr. Knott and stated, "You probably deserve about
another year extra for this." The sentencing judge imposed a concurrent jail term of 16 months
followed by three years probation with conditions not to attend parking lots, not possess tools
except for work purposes, and not be found in private motor vehicles without the owner being
present. [Reasons, September 8, 2005, AR. pp. 17,-18, 'Il'Il4, 7, 9]
15.
The Subsequent Six Month Jail Sentence for Assaulting a Correctional Officer.
On
August 10, 2007, a week prior to the two year anniversary of his original 24 month sentence with
probation, Mr. Knott pled guilty in Victoria Provincial Court to having assaulted a correctional
officer on June 15, 2007 while incarcerated at Vancouver Island Regional Correctional Centre.
As a guard entered his cell, Mr. Knott attempted to lock him inside. The guard resisted, and Mr.
Knott struck him repeatedly in the head resulting in a concussion. Counsel mentioned that Mr.
Knott was near the end of his earlier 24 month sentence, but the issue of potentially voiding the
earlier probation order was not addressed. [T, August 10, 2007, AR. pp. 170(7-33), 171(12-22)] Hubbard
P.C.J. imposed a sentence of six months, consecutive to the earlier sentences. [Reasons, August 10,
2007, AR. pp. 20-21]
The new sentence extended Mr. Knott's incarceration beyond two years and
would have invalidated his earlier probation orders under the Two Year Rule.
6
16.
The 2007 Victoria Sentence and "Illegal Probation". Following a trial, Mr. Knott was
convicted of assault causing bodily hann in relation to an assault of a fellow inmate on June 3,
2007 while in custody (predating the assault on the guard by 12 days). On December 3, 2007,
with just over two months remaining on his August 10, 2007 six month sentence, Mr. Knott was
sentenced in Victoria Provincial Court by Chaperon P.C.J. to eight months of additional custody
(in addition to credit for 13 days time served) and probation for one year with conditions not to
contact two witnesses. It was noted during sentencing proceedings that Mr. Knott was recently
due for release on his federal sentence. Both counsel noted that he would be subject to a three
year probation order from his earlier sentences, I but no mention was made of new probation
order being illegal under the Two Year Rule. [Reasons for Judgment, November 28, 2007, AR. 22-25;
Reasons for Sentence, December 3, 2007, AR. pp. 26-28; T, December 3, 2007, pp. 177(41-47), 180(10-23);
183(29-35)]
17.
The 2009 Breach of Probation Offence. The BCCA accepted one additional sentence as
fresh evidence. On January 13, 2009, in Courtney Provincial Court, Mr. Knott pled guilty to a
charge of breaching his probation order imposed by Judge Moss on September 8, 2005. He was
driving his mother's car on January 11, 2009, when he was involved in an accident. The earlier
order included a condition that Mr. Knott not be found in any motor vehicle without presence of
the registered owner. During proceedings, no mention was made of the earlier probation order
violating the Two Year Rule. Doherty P.C.J. sentenced Mr. Knott to 60 days imprisonment.
[BCCA Reasons, AR. p. 97,
~6;
Reasons, January 13, 2009, R.R. p. 18; T, January 13, 2009, R.R. 11(10)-12(3),
6(6-18)]
18.
Stay of Mr. Knott's Probation Order Pending Appeal. An application for suspension of
Mr. Knott's impugned probation orders pending appeal was granted April 21, 2009 and Mr.
Knott's probation orders were suspended until the BCCA dismissal of his sentence appeal on
August 26, 2010. [BCCA Reasons, AR. p. 97, ~6]
19.
Background of the Appellant, D.A.P.
D.A.P., born April 6, 1967, has suffered in recent
years from depression and anxiety. He has had long-tenn problems with alcohol and illicit drugs.
With the present offences, his record comprises 17 offences including impaired driving-related
I Since the provinces do not exercise supervisory authority over remission-based release, probation begins on
statutory release on a provincial sentence. Probation attached to federal sentences does not come into effect until
warrant expiry: s. 732.2(1)(b) of the Criminal Code; R. v. Alberts, 2000 BCCA 628; BCCA Reasons, p. 110, ~45.
7
offences (3), property offences (4), and assault-related offences (6). His record contains a gap
between 1994 and 200612007, at the end of which he was twice convicted of spousal assault.
[Reasons, June 3, 2008, A.R. pp. 30-32,
~3-6;
Pre-Sentence Report, May 14, 2008, R.R. pp. 28-30; Psychological
Assessment, May 7, 2008, R.R. p. 34]
20.
A summary ofD.A.P.'s most recent offences related to his appeal is as follows:
June 3,2008
Feb. 19,2009*
Conditional Sentence (2 years less a day)
Sexual Assault
(Two Charges)
+ Probation 2 Years
Breach ofCSO
Break & Enter
Unlawful Confinement
CSO revoked
Three years jail concurrent
Six months concurrent
*1f merger applies, the original sentence is extended and the 2008 probation order is "illegal".
21.
The 2008 Fernie Sexual Offences. On June 3, 2008, D.A.P. pled guilty to two counts of
sexual assault in Fernie Provincial Court. The complainants were his step-children, a boy aged 9
and a girl aged 13 at the time of the offences.
The incidents regarding the step-daughter
consisted of inappropriate kissing and one incident of D.A.P. having her touch his penis. The
incidents respecting the step-son included two incidents of D.A.P. performing fellatio and one
count of manual masturbation of the step-son. The offences occurred at night while the children
were in bed and when D.A.P. was under the influence of alcohol. The Crown sought a custodial
sentence of two years and three years' probation. The defence sought a conditional sentence of
10-12 months and two years probation. Webb P.C.J. imposed a CSO of 2 years less a day,
followed by probation for two years. [Reasons, June 3, 2008, A.R. pp. 29-34, 39, ~~1, 4, 7-9, 23; T, June 3,
2008, A.R. pp. 192(41)-194(6), 196(13-16), 198(25)-199(5),205(9-13)]
22.
The 2009 Cranbrook Offences.
After serving approximately
SIX
months of the
conditional sentence, D.A.P. pled guilty on February 19, 2009 to charges of breaking and
entering (count 1) and unlawful confinement (count 3). He also admitted to breaching his CSO
by violating his curfew in the same incident. The charges arose on February 14, 2009 at 11:30
p.m. when D.A.P. broke into residence of T.K., his ex-spouse and the mother of the sexual
assault complainants. The children were not home. Carrying a screwdriver and scissors, D.A.P.
entered the master bedroom bathroom where T.K. had just exited the shower. She told him to
leave. He responded by grabbing her, throwing her onto the bed, and striking her in the face. For
8
30 minutes he refused to let her leave, saying he knew she would contact the police. D.A.P. was
emotionally unstable and alternating between depression and anger. Eventually he left, telling
T.K. not to call the police. Police attended D.A.P.'s residence shortly after midnight and
discovered he was not home contrary to his CSO. He had previously twice violated his CSO. On
the first occasion, he violated a curfew and was released after four days in custody. On the
second, he breached an abstinence condition and was released after serving three months in
custody. [T, February 19,2009, A.R. p. 215(5)-217(8)] Shortly thereafter, the break-in occurred.
23.
At sentencing, Crown Counsel brought the probation order to the attention of the
sentencing judge and advised that it would essentially be vacated upon D.A.P. receiving
additional jail time. The sentencing judge converted the remaining time (18 months) on the
conditional sentence order to a regular jail sentence and sentenced D.A.P. to a concurrent
sentences of three years for the break and enter and six months for unlawful confinement. [T,
February 19,2005, A.R. p. 217(9-17); Reasons, February 19, 2009, A.R. pp. 51, 53, ~~6, 14-16]
Reasons of the Court ofAppeal
24.
The BCCA stated "[t]he law, as it presently stands in British Columbia (and apparently in
other Canadian provinces), is that if an offender receives sentences, regardless of when they are
imposed, that are cumulatively in excess of two years, any probation order, albeit lawfully
imposed at the time, will become unlawful as a result of the application ofs. 139 of the CCRA."
[BCCA Reasons, A.R. p. 98, ~9]
The Court identified three situations2 where probation orders have
been held to be voidable under the Two Year Rule (the second two of which were challenged by
the Crown/Respondent):
i)
Where a single judge imposes a sentence at one sitting which, either individually
or cumulatively, exceeds two years. Any probation order imposed at this time is
unlawful based on the plain wording of the Criminal Code.
Where the offender is subject to a sentence and a judge imposes a subsequent
sentence which will bring the total of the sentences beyond two years. Where the
subsequent sentence includes a probation order, this sentence has been found to be
unlawful.
ii)
[24] An issue arises in this second scenario regarding how the sentences are calculated. There
are two approaches. The first starts with the remanet of the first sentence added to the second
sentence. This approach has been taken in the cases of R. v. Currie (1982), 65 c.e.c. (2d) 415
The probation orders imposed upon Mr. Knott fall within the second and third situations. The probation order for
D.A.P. falls under the third, though his initial sentence was a CSO rather than a conventional jail sentence.
2
9
(Ont. c.A.), R. v. Pickell, [2007] O.J. No. 2655 (Ont. S.C.J.), and R. v. Amyotte, 2005 BCCA 12,
192 C.C.C. (3d) 412. The other approach is to apply s. 139 to merge the sentences, in which case
the length of the sentence is calculated from the date the first sentence was imposed. This
approach has been adopted in R. v. G.E.R., 2001 NFCA 56, 160 C.C.C. (3d) 173 (Nfld. C.A.), and
R. v. Hendrix (1999), 137 C.C.C. (3d) 445 (Nfld. c.A.).
iii)
Where an offender has been sentenced to a lawful sentence and a probation order
and a subsequent sentence results in the "merged" sentence extending beyond two years.
The courts to date (with the exception of Pickell), have uniformly applied s. 139 of the
CCRA to reflect this merger and set aside the otherwise lawful probation order. For the
reasons that follow, in our view, this has been a wrong interpretation of the section,
particularly in light of R. v. Middleton, 2009 SCC 21, 244 C.C.c. (3d) 52.
[BCCA Reasons, AR. pp. 103-104, '\1'\122-24; see also, pp. 111-112, '\1'\150-52]
25.
The BCCA quoted from this Court's decision in Mathieu to the effect that s. 731(1)(b)
refers to the actual imprisonment imposed at the time of sentencing.
It also referred to
Middleton in concluding that s. 139 of the CCRA has application only to the calculation of
sentence for the purposes of administering parole and statutory remission but does not merge
sentences for the purpose of determining whether a term of imprisonment exceeds two years.
[BCCA Reasons, AR. pp. 115-118, 'Il'Il65-69]
26.
In reviewing the effect of these recent decisions, the BCCA found little difficulty with the
first situation: a judge who imposes a sentence at one sitting which is individually or
cumulatively in excess of two years, cannot add probation to the sentence. [BCCA Reasons,
AR.
118, '\172]
27.
In relation to the second situation, the BCCA held that where the offender is already
serving a sentence, a judge can impose a sentence of two years (consecutive or concurrent to
another sentence) followed by probation on a bare reading of s. 731 (1 )(b) and Mathieu.
However, the BCCA held that the remaining portion of the previous sentence should be taken
into account and stated that Parliament did not intend probation to follow a "sentence" of more
than two years: "While a judge has the jurisdiction to impose a probation order, to do so would,
except in the rarest of cases, be an error in principle." Therefore, "[w]hen the sentence is
imposed on a remanet, and the total of the new sentence and the remanet exceeds two years,
probation should not be ordered." [BCCA Reasons, AR. pp. 118-119, '\173-74]
28.
Regarding the third situation, the BCCA held that a lawful probation order attached to an
initial sentence is not rendered illegal by the subsequent imposition of an additional custodial
10
sentence which, when added to the pre-existing sentence, exceeds two years. Regardless of any
length of sentence imposed subsequent to a lawful probation order, the probation order is not
nullified nor does it otherwise become unlawful by application of s. 139(1) of the CCRA. The
only exception operates where the subsequent sentence is one of life since the offender will be on
parole for life and probation cannot follow. The BCCA held that where the probation order is no
longer viable, necessary, or desirable as a result of the imposition of the subsequent sentence, it
may be decreased on a subsequent application under s. 732.2(3)(c) of the Code. [BCCA Reasons,
A.R.pp.
120-121,~78-79]
29.
In the result, the Appellants' sentence appeals were dismissed and all the impugned
probation orders were upheld as valid.
11
PART II - RESPONDENT'S POSITION ON APPELLANTS' QUESTIONS
30.
These appeals put in issue the Two Year Rule by which the otherwise lawful probation
orders imposed upon the Appellants would be rendered illegal simply because they attach to an
individual jail sentence which, when followed or preceded by a separate jail sentence, exceed
two years in totality.
31.
The Appellants state the Questions in Issue as follows:
(l) The Two-Year Rule rests on the interpretation of s. 731 (1) alone;
(2) The BC Court of Appeal erred in its interpretation ofs. 731(1); and
(3) Section 139 of the CCRA supplements Parliament's intent in s. 731 (l) and the TwoYear Rule.
32.
The Respondent prefers to reorganize the sub-issues arising from the validity of the Two
Year Rule and provide its position as follows:
(l) Section 731 of the Criminal Code does not support the Two Year Rule;
(2) Section 139 of the CCRA does not support the Two Year Rule;
(3) The Absurdities of the Two Year Rule Should Inform the Interpretation of the
Underlying Statutory Provisions; and
(4) The B.C. Court of Appeal rightly abandoned the Two Year Rule but erred in its
"remanet" analysis.
33.
The Respondent submits, therefore, that the Two Year Rule ought to be abandoned and
the sentences imposed upon the Appellants affirmed.
12
PART III - ARGUMENT
A.
SECTION 731 OF THE CRIMINAL CODE DOES NOT SUPPORT THE TWO
YEAR RULE
Section 731 (1 )(b) as a Basis of the Two Year Rule
34.
Section 731 (1 )(b) of the Criminal Code permits the imposition of a probation order in
addition to fining or sentencing the offender for a term not exceeding two years. The Appellants'
argument that the Two Year Rule rests upon this section alone is based upon two assumptions:
(1) Parliament intended all probation orders to commence within two years; and (2) sentences
imposed on other occasions must be included in the words "imprisonment not exceeding two
years" within s. 731. Neither is correct. Instead, the section requires only that the sentence or
sentences passed by a sentencing judge at one sitting be two years or less. Thus, the availability
of probation should not be limited by sentences imposed on other occasions.
Misplaced Characterization of Parliamentary Intent in s. 731
35.
In the past, some decisions interpreting s. 731 (1 )(b) have attributed to Parliament the
inaccurate idea that probation must come into effect within two years from the time of
sentencing: R. v. Currie (1982), 65 C.C.C. (2d) 415 (Ont. c.A.) at ~4. A frequently cited source
of this principle, which was imported from the context of consecutive sentences imposed at the
same sitting,3 stems from R. v. Miller (1987), 36 C.C.C. 100 (Ont. C.A),4 which followed its
earlier short decision in Currie:
In my opinion, the principle governing s. 663(1)(b) [now s. 731(1)(b)] of the Code is that
Parliament intended that a probation order would not come into effect more than two years from
the time of sentencing and that an accused would not be made subject to a probation order, if
required to serve a sentence of more than two years. [Emphasis added]
36.
This erroneous two year time limit for the commencement of probation is offered as a
5
justification for the Two Year Rule where s. 731 alone is relied upon. Since this imperfect
In support of the proposition, the court in Currie, in a five paragraph decision rendered orally, cited R. v. Young,
(1980), 27 C.R. (3d) 85 (B.C.C.A.), but Young dealt with a probation order imposed on consecutive sentences
totalling 7 years imposed at the same sitting, not on different occasions. The precedents cited in Miller, other than
Currie, also all involved situations where greater than two years imposed at one sitting, not at multiple sittings.
4 As the BCCA noted in its reasons in the case at bar at 'l!36, Miller was the first reported case where a lawfully
imposed probation order was set aside as a result of the imposition of a subsequent sentence (situation (iii) above).
It noted that Miller was not represented, and the Crown did not oppose the application. In R. v. Toscano, 2011
ONC] 155, at 'l!10, the Court stated of Miller that "the issue was never fully litigated."
5 Several of the decisions the Appellants cites in support of the Two Year Rule as resting on s. 731 alone fall under
the first category of cases (probation imposed on sentences totalling in excess of two years imposed at one sitting)
3
13
statement of the principle behind s. 731, additional decisions have cited the principle without
properly examining the language, context, or purpose of the section: see, for instance, R. v.
K.K.(Kohl) (2009), 244 C.C.C. (3d) 124 (Ont. c.A.) at
~5;
leave refused [2009] S.C.C.A. No.
130. Some of these decisions such as Currie do not appear to have had the benefit of full
argument on the proper interpretation of s. 731 and none have considered the error in applying
the Miller statement of Parliamentary intent to multiple sentences imposed at different times.
37.
In fact, nothing in the Criminal Code states that a probation order must commence within
two years of sentencing. More accurately, by referring to "in addition to ... sentencing the
offender to imprisonment" (or the French, "en plus ... de Ie condamner it un emprisonnement"),
the Code merely provides that a probation order should not attach to a sentence that exceeds two
years. 6 The section is set out below for ease of reference:
731.
(1) Where a person is convicted of an offence, a court may, having regard to the age and
character of the offender, the nature of the offence and the circumstances surrounding its
commission, ...
(b) in addition to fining or sentencing the offender to imprisonment for a term not
exceeding two years, direct that the offender comply with the conditions prescribed in a
probation order. [Emphasis added]
38.
As revealed by its title "Making of Probation Order", this section deals only with the
making -- not the commencement (see s. 732.2(1) discussed infra) -- of a probation order. This
difference between commencing within two years and attaching to a two year sentence is critical.
The Appellants' interpretation of s. 731 (1) is based on an erroneous assumption of Parliamentary
intent that all probation orders must commence within two years of imposition, a position which
looks only at the sentence to be served from the perspective of the offender. In fact, the enabling
language in s. 731 of the Code does not support this position.
39.
The relevant provision dealing with the commencement of probation orders contains no
language requiring commencement of probation within two years. Entitled "Coming Into Force
and are not helpful dealing with cumulative sentences imposed at different times: R. v. Young, supra,; R. v.
Callaghan (1973), 9 C.C.c. (2d) 125 (B.C.C.A.) (imprisonment for 12 months definite followed by 18 months
indeterminate with probation, all imposed at the same sitting); and R. v. Hennigar (1983), 58 N.S.R. (2d) 1lO
(N.S.C.A.) (consecutive terms of imprisonment totalling 3 years imposed at the same sitting). See also, R. v.
Amaralik (1984), 16 C.C.C. (3d) 22 (N.T.C.A.), at ~~1l-12 (probation imposed on one and two year consecutive
sentences in the same sitting) which adopts the Miller and Currie principle.
6 "To me, it is perfectly plain that it provides that a probation order can be attached to a sentence only if that is a
sentence for a term not exceeding two years": R. v. Nutter. et af. (1970),7 C.C.c. (2d) 224 (B.C.C.A.), at p.227.
14
of Order", s. 732.2(1) ofthe Criminal Code states as follows:
732.2(1) A probation order comes into force
(a) on the date on which the order is made; [or]
(b) where the offender is sentenced to imprisonment under paragraph 731 (1 )(b) or was
previously sentenced to imprisonment for another offence, as soon as the offender is
released from prison or, if released from prison on conditional release, at the
expiration of the sentence of imprisonment; or.
(c) where the offender is under a conditional sentence order, at the expiration of the
conditional sentence order. [Emphasis added]
40.
By referring to the commencement of a probation order "as soon as the offender is
released from prison" (or at the expiration of conditional release), the Code already allows for
the delayed commencement of a probation order where another jail sentence is operative. There
is no two year ceiling in s. 732.2(1) as one would expect if Parliament intended a two year limit
from the time of sentencing. For instance, in R. v. Ivan (2000), 148 C.C.c. (3d) 295 (B.C.c.A.),
the appellant received a sentence of one day imprisonment and probation, following which he
was remanded on another charge and later sentenced to 32 months. Commencement of the
probation order was delayed 38 months from sentencing, but no language in the Code prohibits
this result. [Ivan, at ~8; BCCA Reasons, p. 110, ~46] Similarly, as the BCCA pointed out in this case,
the three year maximum length of probation orders runs from the date the order comes into
force. 7 No limitation operates according to the date a probation order was imposed.
41.
In fact, the Criminal Code provides for numerous situations where valid probation orders
would not commence within two years. These examples are significant because they undermine
the notion that probation must always commence within two years. For instance,
7
•
Where an offender is granted release from custody pending appeal (s. 679(3) and (4)), or
where a probation order is suspended pending appeal (s. 683(5)), commencement of a
probation order may be pushed back well beyond two years from the date of sentencing;
•
Parole revocation on a sentence of two years and probation will "stop the clock" and push
back warrant expiry and commencement of the probation order beyond two years (s.
719(2) ofthe Code);
•
A conditional sentence order with probation attached may be interrupted by an
intervening jail sentence on another matter, thus delaying commencement of the
probation order (s. 742.7). As well, where the offender breaches its terms, time stops
BCCA Reasons, A.R. p. 118, ~~69-70; ss. 732.2(2)(a) and 732(2)(b) of the Criminal Code.
15
running on the CSO and commencement of the probation order may be delayed beyond
two years. (s. 742.6(10) of the Code); and
•
42.
Where an offender's previous sentence ends and he remains in custody on a new charge
but is not yet convicted, commencement of the probation order can be delayed beyond
two years: R. v. Ivan, supra, at ,-r,-r7-9.
Thus, nothing in the language of the Code suggests that probation should be cancelled
when total imprisonment exceeds two years. On the contrary, by allowing for the possibility of
other events to delay release from prison and commencement of the order, the Code implies that
the legality of probation orders was meant to be unaffected by other sentences.
Section 731 Does Not Incorporate Other Sentences Imposed at Other Sittings
43.
The second major error in the Appellants' argument involves the inclusion of other
sentences imposed on other occasions within the words of 731 (1 )(b) that, "a court may ... in
addition to fining or sentencing the offender to imprisonment for a term not exceeding two years,
direct that the offender comply with ... a probation order." The section is triggered by a
conviction for an offence before the sentencing court. Probation is only available if joined with
the present imposition of a fine or imprisonment. The language (including the words "fining or
sentencing") is phrased so as to speak only to the sentence the judge imposes at the time of
sentencing. The language does not incorporate unrelated sentences imposed on other occasions.
Nor does it refer to the "totality of all sentences then to be served" (the remanet or Currie
approach discussed in Part D below).
44.
To be sure, a sentencing judge ought to be mindful ofthe totality including any unexpired
sentences the offender is still serving. But, a sentence of less than two years is not transformed
into a sentence of more than two years for the purposes of s. 731 (1 )(b) simply because the
offender is already serving, or will later serve, additional time in custody. The plain language of
s. 731(1)(b) indicates it was meant to apply to a sentence passed for one or more offences at one
sitting. Such an interpretation is not a "novel interpretation" as the Appellants allege but an
interpretation of s. 731 according to its plain meaning.
45.
Similar language to "imprisonment for a term not exceeding two years" is used elsewhere
in the Criminal Code in relation to the availability of a 90 day intermittent sentence (s. 732(1)),
the availability of conditional sentences (s. 742.1), the power to delay parole for sentences of two
16
years or more (s. 743.6), and the maximum period of imprisonment for some offences such as
certain forms of theft or obstruction of justice (e.g. ss. 334(b)(i) and 139(1)(c)). None of these
other provisions have been interpreted so as to include previous unexpired sentences. For
instance, an offender would not become eligible for discount off a two year maximum sentence
for theft if he or she is already serving another sentence. 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: Thomson v. Canada, [1992] 1 S.C.R. 385, at p. 400. The Appellants' interpretation would
mean that the same words would be interpreted differently in other parts of the Code for no
apparent reason. 8
46.
The grammatical and ordinary sense of the language in s. 731 is clear. There is no need
to resort to the rule of strict construction, a rule which operates only where ambiguity as to the
meaning of a provision exists. 9 Strictly construing the phrase "term of imprisonment" against the
Crown so as to void probation orders where multiple sentences of imprisonment spill over the
two year mark is misplaced in this context. Here, the issue is not the severe penal legislation
from which the rule of strict construction emanated in "days gone by",10 the intention of
Parliament is readily ascertainable, and probationary conditions such as D.A.P.'s probationary
conditions of counselling and not contacting the child victims of his sexual offending serve not
to punish but to rehabilitate the offender and protect the public.
The Appellants' Interpretation of s. 731 was Rejected by this Court in Mathieu
47.
As noted, the Appellants' argument rests upon the words "sentencing the offender to a
term of imprisonment not exceeding two years" including prior or subsequent sentences imposed
on different occasions. Yet, this Court has explicitly rejected such an interpretation of s. 731 of
the Code. In R. v. Mathieu, supra, this Court dealt with the issue of whether probation can
follow a sentence of imprisonment which, when pre-sentence custody is accounted for, exceeds
two years. In finding that pre-sentence custody is not part of the sentence, Fish J., writing for the
Court, held as follows:
8 The Appellants' interpretation would also mean that an offender already serving a period of incarceration could
not be sentenced to a fine and probation on a new charge (since the sentences would blend into each other and
imposition of all three types of sentence is prohibited by s. 731(1)(b». It could also interfere with the imposition of
minimum sentences since prior unexpired sentences would be blended with current sentences.
9 Bell ExpressVu Limited Partnership v. Rex, [2002] 2 S.C.R. 559,2002 SCC 42, at ~28.
10 R. v. Hasselwander, [1993] 2 S.C.R. 398, 81 C.C.C. (3d) 471, at pp. 476-478 C.C.C.
17
[19] Manifestly, the words "imprisonment for a term not exceeding two years" used by
Parliament in s. 731 (1 )( b) refer to the custodial term imposed at the time of sentence - the actual
term of imprisonment imposed by the court after taking into account any time spent in
pre-sentence custody. [Emphasis added]
48.
Mathieu therefore holds that the term of imprisonment to which the probation order is
attached is confined to the actual term imposed at sentencing; see also, Mathieu, at ~~25-28.
49.
This Court's reasoning in Mathieu - which is a complete answer to the Appellants
argument on s. 731 (1 )(b) -- is applicable here. First, it supports a purposive approach to the
interpretation of Code provisions governing probation by emphasizing the importance of
generous availability of probation to facilitate the offender's rehabilitation. [at
~20]
Second, it
supports the proposition that probation may be useful even where the offender has been in
custody for longer than two years. A probation order is a useful tool for a judge, whether the
accused has been in pre-sentence custody or not (Mathieu, at ~21), and by analogy whether the
offender is serving an unexpired sentence or not. Third, it allows practical consequences to
inform interpretation of the statutory provisions governing probation. If it were concluded that
probation orders attached to sentences close to two years could so easily be frustrated by a short
additional sentence, this could have a harmful consequence as judges might be inclined to
impose longer periods of incarceration. [at
~22]
Finally, Mathieu limits the idea of sentence
merger by interpreting s. 731 (1 )(b) as referring to the actual sentence imposed at the time of
sentencing. Similarly, the majority also prohibited the inclusion of pre-sentence custody in the
calculation of whether a parole ineligibility order may be made under s. 743.6(1.2) of the Code
(available for a sentence of2 years or more).
[at~28]
Mathieu thus supports the distinctiveness of
the sentence imposed by the sentencing judge.
The Appellants' Interpretation is Contrary to s. 719( 1)
50.
The Appellants' argument in favour of incorporating other sentences into s. 731 is also
directly contrary to s. 719(1) of the Code which states as follows:
719. (1) A sentence commences when it is imposed, except where a relevant enactment otherwise
provides.
51.
Despite this provision, a five member division in R. v. G.E.R., 2001 NFCA 56, at
~31,
writing prior to Middleton and relying in part on s. 139 of the CCRA, held that the calculation of
the two years on two overlapping sentences begins with the beginning of the first sentence. Yet,
18
s. 719(1) clearly prohibits any antedating or post-dating of sentences to a starting point other than
the time upon which the sentence is imposed; see also, s. 719(4). This point was also stressed in
Mathieu where this Court held that sentences commence at the time they are imposed:
[11] According to the very words of s. 719(1) of the Criminal Code, "[a] sentence commences
when it is imposed", and s. 719(3) provides that "[i]n determining the sentence ... a court may
take into account any time spent in custody by the person as a result of the offence". These
sentencing principles apply without doubt to the making of a probation order. [Emphasis added]
52.
Section 719(1) of the Code thus prohibits the blending of sentences imposed on different
occasions. Like s. 139(2) of the CCRA (discussed infra), it ensures that each sentence retains its
individual character. In light of s. 719(1), the Appellants' interpretation of s. 731 (1) as including
prior or subsequent sentences cannot withstand scrutiny.
Language Supporting Sentence Merger Not Used in s. 731
53.
IfParliarnent had wished to adopt the Appellants' interpretation, and allow for a sentence
on one matter to merge with a sentence on another, it would have said so explicitly. For instance,
the Youth Criminal Justice Act contains several provisions which provide for aggregate limits for
sentences imposed on different occasions: see ss. 42(15), 42(16), 43, 44, and 46. Those
provisions place ceilings on overlapping sentences. Similarly, ss. 743.1 (1)(c) and 743.1(5) of the
Criminal Code specifically consider the placement of an offender in a penitentiary where he or
she receives two sentences of less than two years which together add up to more than two years.
No similar language is found in the provisions dealing with probation orders.
Probation Useful Even After More than Two Years in Custody
54.
In Mathieu, this Court has held that probation may attach to a sentence of two years even
where "time served" would put an offender over the two year mark. In doing so, the Court
adopted the statement in R. v. Goeujon, 2006 BCCA 261,
~49
that, "it may be that a particular
offender who has spent time in pre-sentence custody and deserves a sentence of imprisonment of
two years may still benefit from the rehabilitative aspects of probation": Mathieu, at ~20. Thus,
imprisonment for two years and probation may be imposed even where the offender has served a
significant period of pre-sentence custody.
Similarly, the availability of probation -- a less
restrictive sanction than incarceration -- ought not to be unduly restricted by the infusion of past
or future sentences into the equation.
Indeed, maximizing the availability of probation
desirable as it offers the flexibility to impose a non-custodial sentencing option.
IS
19
55.
It is no answer to point to the possibility of parole on a federal sentence and suggest that
probation was not meant to apply to such sentences. [Appellants' Factum, ~~3, 72] In setting the limit
in s. 731 (1 )(b) for probation availability at a term of imprisonment of two years rather than two
years less a day, Parliament allowed for the possibility of probation after a federal sentence.
56.
Probation can be valuable even if an unrelated sentence pushes the offender's term above
two years. Not all offenders receive parole or statutory release. Where a federal offender is held
until warrant expiry and released, probation may offer a "soft landing" which provides longerterm structure, support and monitoring in the community. While an offender with a probation
order who receives additional time in custody may receive treatment in custody or on parole, this
will not always be the case (e.g. where the offender declines counselling, desired programming is
full, or there is insufficient time to complete it). Parole on a low federal sentence may also be of
shorter potential duration than probation. And certain probationary terms such as non-association
and area restrictions are highly effective at keeping an offender away from trouble while offering
continuing protection to victims. In R. v. Engerdahl (1993),33 B.c.A.C. 317, the BCCA held in
relation to a probation order attached to a three year sentence, "As the probation order is not
authorized by law it must be deleted although I see the advantages of longer periods of restraint
upon the accused if that were possible ... "
57.
[at~9]
The possibility oflong-term community management of an offender is not unique to the
probation setting. For instance, in certain cases courts now have the ability to impose up to 10
years community supervision on long-term offenders (s. 753.1(3)), to impose restrictive
conditions on non-attendance at parks and internet use for life on sex offenders under s. 161 of
the Code, and to require compliance with the Sex Offenders Registry for periods between 10
years and life (s. 490.013). Moreover, in the modem era, a better understanding exists of
entrenched life-long criminogenic problems such as addiction, sexual offending, and mental
health issues which require long-term rehabilitation. The addition of a jail sentence resulting in
an aggregate sentence in excess of two years does not support a presumption that probation
invariably becomes overly burdensome or no longer effective.
The Principles of Sentencing Support the Wide Availability of Probation
58.
The Respondent submits the forward-looking purposes of probation assist in reaching a
principled interpretation of the applicable Criminal Code provisions. In R. v. Proulx, [2000] 1
20
S.C.R. 61, 2000 SCC 5, at
~~32-34,
this Court held that probation is primarily a rehabilitative
sentencing tool which seeks to influence the future conduct of the offender.
59.
Section s. 718 of the Criminal Code provides, "The fundamental purpose of sentencing is
to contribute, along with crime prevention initiatives, to respect for the law and the maintenance
of a just, peaceful and safe society" including the objective of assisting in the rehabilitation of
offenders (s. 718(d)). A sentencing judge is required to consider the least restrictive sanction
appropriate in the circumstances (s. 718.2(d)), and all available sanctions other than
imprisonment (s. 718.2(e)). The purpose of probation includes the protection of society and
rehabilitation of offenders: s. 732.l(3)(h) of the Code. Crafting a proper sentence, as Lamer,
c.J.C. wrote in Proulx, is in large measure dependent on "the good judgment and wisdom of
sentencing judges whom Parliament vested with considerable discretion in making these
determinations". [at ml116, 124] An interpretation' which would unduly restrict the availability of
probation, or completely nullify the rehabilitative potential of an earlier probation order, is not
consistent with Parliamentary intent to provide a wide discretion to sentencing judges to fashion
a fit sentence that is proportionate to the gravity of the offence and the culpability of the offender.
The Availability of Other Control Mechanisms is Irrelevant
60.
The Respondent submits that the availability of other limited measures to control
offenders does not assist in the interpretation of s. 731 of the Criminal Code. Preventative
recognizances under ss. 810.01 through 810.2 of the Criminal Code are not a sentencing option
and serve different purposes than probation. They require a separate application, are of shorter
maximum duration (one or two years), and conditions imposed pursuant to such orders are
limited: R. v. Budreo (2000), 142 C.C.C. (3d) 225 (Ont.C.A.), at ~41. As with s. 161 orders (Order
of Prohibition for sexual offenders), such orders are available only in very limited circumstances.
These orders, which are intended to protect persons whom it is reasonably feared an individual
will harm, are not designed to secure the post-sentence rehabilitation or reintegration of an
offender in the community. As such, they are not a substitute for the availability of probation
imposed at sentencing. Nor does the existence of those sections indicate any Parliamentary
preference to control offenders in society, as the Appellants allege.
21
B.
61.
SECTION 139 OF THE CCRA DOES NOT SUPPORT THE TWO YEAR RULE
A second more commonly arising basis for the Two Year Rule stems from reliance upon
the combined operation ofss. 731(1)(b) of the Criminal Code and 139(1) of the CCRA. Section
139(1) ofthe CCRA reads as follows:
139. (1) Where a person who is subject to a sentence that has not expired receives an additional
sentence, the person is, for the purposes of the Criminal Code, the Prisons and Reformatories Act
and this Act, deemed to have been sentenced to one sentence commencing at the beginning of the
first of those sentences to be served and ending on the expiration of the last of them to be served.
62.
Where a person subject to an unexpired sentence receives an additional sentence, s.
139(1) of the CCRA has been interpreted as deeming a person to be serving one sentence
commencing at the beginning of the first and ending on the expiration of the last of them to be
served. This provision was limited in R. v. Carrignan (2003), 172 C.C.C. (3d) 1 (Ont. c.A.),
later adopted by this Court in Middleton. Following these decisions, the BCCA held in the case
at bar that sentence merger in the CCRA was intended only to facilitate administrative sentence
calculation, not to substantively affect sentences. [BCCA Reasons, A.R. p.112-118, ~53-69]
Section 139 of the CCRA as a Basis for the Two Year Rule
63.
As explained in Carrignan, s. 139 of the CCRA derives from amendments introduced in
the late 1960s to Canada's statutory parole scheme. The provision, as with its predecessor under
s. 14 of the Parole Act, governs sentence calculation and administration for parole and statutory
remission purposes. When originally enacted, the effect of the section was to deem multiple
"terms of imprisonment" to be a single "term of imprisonment" for all purposes of the Parole
Act, the Penitentiary Act and the Prisons and Reformatories Act: Carrignan, supra, at
~~28-29.
The section was amended in 1970 then replaced entirely in 1992 by s. 139 of the CCRA. In
1995, amendments to the CCRA were enacted and s. 139 was replaced with the current version.
64.
Initially, there was some hesitation in broadly applying s. 14 of the Parole Act, or its
successor, s. 139(1) of the CCRA. For instance, in 1982 in Currie, supra, the Ontario Court of
Appeal held that s. 14 of the Parole Act" ... does not avail to make the sentence pronounced on
January 8, 1980, one which, of and by itself, contravened s. 663(1)(b) [now 731(1)(b)] of the
Criminal Code in so far as the probation order is concerned." [at
~4]
See also, R. v. Robillard
(1985),22 C.C.C (3d) 505 (Que. c.A.), at pp.509-511; R. v. Dozois (1981),61 C.C.C. (2d) 171
22
(Ont. C.A.), at p. 174; A.G. v. Leschenko, [1982] F.C.J. No. 169 (C.A.).
65.
However, in R. v. Miller, supra, the same court, citing s. 14(1) of the Parole Act, soon
established a firm rule by which a term of probation attached to a sentence of two years less a
day becomes illegal when subsequent consecutive prison sentences are imposed such that the
total prison sentence being served exceeds two years. The Ontario Court of Appeal in Miller
suggested that s. 14 of the Parole Act strengthened the opinion that where the totality of
sentences exceeds two years, a probation order is not available. Despite the failure in Miller to
analyse the purpose of sentence merger, subsequent decisions have followed Miller in applying
the CCRA deeming provision (and its predecessor under the Parole Act) to quash probation
orders whether attached to an original sentence extended by subsequent imprisonment (e.g. R. v.
McKinnon, 2008 BCCA 416,237 C.C.C. (3d) 345) or a subsequent sentence imposed on top of
an unexpired jail sentence (e.g. R. v. Pauls, 2008 BCCA 322).
Middleton Effectively Rejects the CCRA as a Basis for the Two Year Rule
66.
In May of 2009, this Court released its judgment in R. v. Middleton, supra, in which the
majority interpreted s. 139 of the CCRA contrary to the traditional rationale behind the Two Year
Rule. Writing for the majority, Fish J. held that an intermittent sentence cannot be rendered
illegal by a contemporaneous or subsequent conditional sentence because the two sentences are
distinct and do not merge together. It interpreted the rule governing sentence merger contained in
s. 139 of the CCRA as having no application to intermittent or conditional sentences. This Court
also limited the application of s. 139 generally. After approving of the Carrignan review of the
provision, this Court held that Parliament intended the section to have a narrow purpose:
[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. [Emphasis added]
The majority rejected the view that it is the total length of combined sentences which governs
eligibility for intermittent sentences. [at
~~41-52]
The Respondent submits this Court's
confirmation of the restricted nature of s. 139 of the CCRA completely undermines this basis for
the invalidation of probation orders through sentence merger.
Sentence Merger in the CCRA has an Administrative Context
67.
As noted in Middleton, the CCRA governs sentence calculation and administration. The
subtitle to the Act reflects its purpose: "An Act respecting corrections and the conditional release
23
and detention of offenders and to establish the office of Correctional Investigator." Part I
establishes the Correctional Services of Canada (C.S.C.) and provides for the management of
offenders within an institution and the community. While the Criminal Code specifies sentencing
principles and sentence lengths, the CCRA, generally sets out procedures for calculating sentence
lengths imposed under the Code, forms of conditional release, conditional release eligibility, and
warrant expiry. Section 139 comes under Part II of the CCRA entitled "Conditional Release,
Detention and Long-Term Supervision." This part of the CCRA deals with the constitution and
jurisdiction of the National Parole Board (N.P.B.), eligibility for release, and the nature of parole
hearings. The opening section of Part II, s. 99, sets out various definitions. Then s. 100 sets out
the "Purpose of Conditional Release." Sections 101-102 set out the principles guiding Parole
Boards and the criteria by which offenders may be granted parole. The C.S.C. and N.P.B.,
established by the CCRA, have no authority to either shorten or lengthen or alter a sentence set
by a court.
Nothing in the CCRA deals with imposition of a fit sentence, a task reserved
exclusively for judges.
68.
The conclusions in Middleton were born out of the extensive analysis of s. 139 of the
CCRA carried out by Cronk lA. (Catzman l.A. concurring) in Carrignan, supra, at ~~25-44. In
Carrignan, the Crown unsuccessfully argued for a broad application of s. 139 of the CCRA to
enable it to proceed with an application for a DNA order, which was otherwise out of time, on
the basis that s. 13 9 of the CCRA deemed the accused to be serving a blended sentence of at least
two years. Cronk J.A. dismissed the Crown appeal holding that" ... the device of sentence merger
was intended to facilitate sentence calculation for sentence administration purposes ... " [at
~36]
Justice Cronk concluded as follows:
[49] 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. [Emphasis added]
69.
Other decisions have also observed the limited effect of the CCRA parole eligibility rules.
In R. v. CA.M., [1996] 1 S.C.R. 500, this Court dealt with the issue of whether the totality
principle required trial judges to limit fixed-term cumulative sentences to a term of imprisonment
of 20 years, absent special circumstances. In answering the question in the negative, the Court
examined the context of the CCRA and concluded that it had a limited purpose:
24
... The Corrections Act was enacted for the purpose of creating a comprehensive correctional
system to execute the larger system of criminal sentencing established by the Code. As the
Corrections Act defines its own purpose:
3. The purpose of the federal correctional system is to contribute to the maintenance of a
just, peaceful and safe society by
(aJ carrying out sentences imposed by courts through the safe and humane custody and
supervision of offenders; ... [Emphasis added]
In my view, it would seriously pervert both the very purpose and function of the statute to suggest
that the peculiarities of the parole eligibility rules contained within the Corrections Act ought to
dictate and control the structure of sentences under the Code. The Corrections Act was intended
to facilitate the sentencing discretion of trial judges rather than frustrate it. [at '1170]
70.
The same point was succinctly made by Madam Justice Southin in R. v. Bernier, 2003
BCCA 134, 177 C.C.C. (3d) 137, a case where the sentencing judge was held to have erred when
he increased the length ofthe sentence in view of parole considerations:
[45] To put this another way, judges, in determining a fit sentence, are to put the powers
conferred by the Corrections and Conditional Release Act on the National Parole Board out of
their minds. Parliament has given certain powers to the judiciary and others to the Board and it is
not for the one to trespass into the field of the other. [Emphasis added]
The History and Purpose ofs. 139 of the CCRA Confirm Its Limited Scope
7l.
The history of s. 139 of the CCRA demonstrates that its purpose is nothing more than the
simplification of sentence administration, not the substantively alteration of sentences:
Carrignan, at ~~26-36. There are two key issues in relation to the administration of sentence: (1)
when an offender must be released (or when s/he may apply for supervised release); and (2)
where the offender is to serve his or her sentence (a provincial prison or federal penitentiary).
Historically, these issues were often complicated by the imposition of multiple sentences for
multiple offences, especially when those multiple sentences were not imposed at the same time.
By creating a "legal fiction", s. 139 of the CCRA and its predecessors (i.e., s. 14 of the Parole
Act) were designed to help solve those problems; that is, the purpose of these provisions was to
harmonize and simplify the complex calculation of sentences by creating a merger of the prison
terms or sentences and specifying when they began and ended: Paris v. Canada (Attorney
General), 2001 FCA 186, at ~~20-23.
72.
Section 139 of the CCRA was pre-dated by various versions of the Parole Act which
deemed multiple terms of imprisonment to be a single term of imprisonment for the purposes of
25
calculating parole. As noted in Carrignan, the explanatory notes which accompanied the original
bill following first reading on December 19, 1968 stated:
The new section 11A would make it clear that sentences of imprisonment are to be treated as a
single combined sentence in calculating terms of imprisonment, periods of remission and
periods of mandatory supervision. [at 29] [Emphasis added].
Reviewing the above, Cronk J.A. concluded, "[t]hus, the original purpose of sentence merger
was to facilitate sentence calculation for remission and parole purposes": Carrignan, at
~~28-
29. 11 The Parole Act, before amendment, was considered by this Court in Marcotte v. Deputy
A.-G. Can., [1976] 1 S.C.R. 108, 19 C.C.c. (2d) 257. In that case Dickson J. (as he then was)
said, "It is not one of the purposes of the Parole Act to effect changes in sentences." [at p. 113 ]
73.
As Cronk J.A. further noted, s. 14(1) ofthe Parole Act was amended in 1978 to include a
specific reference to the Criminal Code: see Miscellaneous Statute Law Amendment Act, 1978,
S.C. 1977-78, c. 22, s. 19. The explanatory notes which accompanied the legislative bill that
introduced that amendment indicated that the express reference to the Criminal Code was
directed to ensuring that "sentence computation under subsection 14(1) would also apply for the
purposes ofthe Criminal Code": Carrignan, at ~32.
74.
In 1986, sweeping changes were introduced to the parole system. However, the focus on
sentence calculation in s. 14 of the Parole Act remained. In introducing the 1986 amendments,
the Hon. Perrin Beatty,12 then Solicitor General of Canada, stated with reference to s. 14:
[T]hese are housekeeping amendments designed to clarify the calculation and administration of
sentences, and to facilitate the operations of the Correctional Service of Canada, the National
Parole Board and the provincial correctional institutions.
Of primary concern with respect to the Parole Act which Bill C-68 addresses is that of ensuring
that sentences of inmates confined in federal penitentiaries are calculated so as to accurately
reflect the intent of the judge who sentenced the offender. Section 14 of the Parole Act was
originally enacted to facilitate the administration of sentences by correctional authorities. The
section attempts to achieve that purpose by deeming different terms of imprisonment which were
imposed either at the same sittings of court or at separate occasions, and for which there would
normally be different parole eligibility dates and release dates, to constitute one single sentence
for which there is only one parole eligibility date and one release date. I emphasize that the
deeming provision does not modify the duration of the sentences imposed by the courts: House of
Commons Debates, 1st Sess., 33rd ParI., Vol. V, (12 September 1985) at 6560-61, Quoted in
Carrignan at ~~33-34. [Underlining added]
See also, Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs re Bill C150, House of Commons, 1st Sess., 28th ParI., No. 15 (26 March 1969) at 728-31.
12 The Carrignan judgment mistakenly refers to the Solicitor General as Warren Beatty.
II
26
75.
The CCRA was brought into force on November 1, 1992, replacing the Parole Act and
the Penitentiary Act. Section 139 of the CCRA replaced former s. 14 of the Parole Act. Three
years later, in 1995, various amendments to the CCRA were enacted and s. 139 was replaced
with the version of that section now in force. 13 The purpose of s. 139 of the CCRA was described
in 1995 to the Senate Standing Committee on Legal and Constitutional Affairs by the Director
General, Corrections, of the Ministry of the Solicitor General of Canada. Passages from that
testimony were quoted with approval in both Middleton (at ~32) and Carrignan (at ~35):
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. It does not change the way consecutive and concurrent
sentences work together. That is a matter of law. However, it allows us to consider the
combination of all sentences as a single prison sentence that starts on the first day of the first
sentence and ends on the last day of the last sentence. It allows us to treat that combination of
prison terms as a combination to calculate the dates to allow us to administer the sentence. Senate
Standing Committee on Legal and Constitutional Affairs, Proceedings, 1st Sess., 35th ParI., No. 68 (30
November 1995) at 68:4 and 68:6. [Emphasis added] 14
76.
Following her thorough review, Cronk J.A. concluded that the historical antecedents of s.
139 of the CCRA confirm that the device of sentence merger was intended to facilitate sentence
calculation for sentence administration purposes. It was not intended to substantively change the
way consecutive and concurrent sentences work together: Carrignan, at ~36. This conclusion
was followed by this Court in Middleton. [at ~~33-34]
Wording of the CCRA and Criminal Code
77.
Cronk J.A. in Carrignan pointed out that although s. 139 refers to the Criminal Code, it
does not contain the wording for "all purposes" as did its predecessors under the Parole Act. [at
~~37-39]
In 1992, the word "the" was substituted for the word "all" so that the phrase read ''for the
13 A proposal to amend s. 139 of the CCRA to specify that s. 139(1) does not affect the calculation of the length of
the term of imprisonment for the purposes of s. 131(1)(b) of the Criminal Code was made in May 2005 by the
Working Group on Probation of the Uniform Law Conference of Canada (ULCC). However, despite the passage in
August, 2005 at the ULCC of a motion to change the CCRA, there has been no legislative change to the provision.
14 See also, Senate Standing Committee on Legal and Constitutional Affairs, Proceedings, 1st Sess., 35th ParI., No. 63
(9 November 1995) at 68:7-68:9.
27
purposes of the Criminal Code": see S.C. 1992, c. 20, s. 139(1). As stated in Carrignan, that
substitution supports the argument that s. 139(1) of the CCRA is intended to apply to Criminal
Code provisions, and to sentences under the Criminal Code, for only limited purposes: "As
currently worded, there is nothing in s. 139(1) which purports to merge multiple sentences into
one sentence for all purposes.,,15 [at ~39] The Respondent submits that if Parliament intended the
merger rule in s. 139 to be applied for all purposes (including retroactively altering substantive
sentences), it would have clearly said so.
S. 139(2) Specifically Limits the Application of Sentence Merger in s. 139(1)
78.
Previous authorities on the application of sentence merger in the CeRA have paid little or
no attention to the intent and purpose of s. 139(2) and its predecessor under the Parole Act; for
instance Miller, supra. While sentences merge under s. 139(1) of the CCRA in order to calculate
eligibility for parole and release on the combined term, s. 139(2) ensures that each sentence still
retains its distinct character (similar to s. 719(1) of the Code as noted supra).
Interpretation
(2) This section does not affect the time of commencement, pursuant to subsection 719(1) of
the Criminal Code, of any sentences that are deemed under this section to constitute one
sentence. [Emphasis Added]
79.
Referring to s. 139(2), Cronk J.A.
ill
Carrignan concluded, "s. 139(2) establishes a
specific limitation on the ambit of s. 139(1 )." [at 40] Further,
When the predecessor to the current s. 139(2) was enacted, the intended effect of the section was
described in the Senate by the Hon. J. Harper Prowse as follows:
The ordinary principle is that a sentence shall begin on the day on which the sentence is
imposed and shall run to the expiration of the time imposed, less the statutory remission
which is one-quarter of the sentence, plus any time off for good behaviour which is
calculated at three days a month and which is called "earned time remission."
[A] year ago when the act [sic] was amended, it was thought that it had been made quite
clear that when a man is convicted at a particular time and then later is convicted and
sentenced on another offence, that the date of the commencement of the sentence on the
second offence should be the day on which the second offence was imposed and not from
the day of the sentence for the first offence.
(See Senate Debates, 2nd Sess., 28th ParI., Vol. I (5 February 1970) at 498). As appears from
those observations, the intended effect of s. 139(2) is that sentences should commence on the day
they would ordinarily commence according to the Criminal Code as ifs. 139(1) did not exist. The
15 The application of the predecessor to section 139 of the CCRA was restricted in Leschenko, Dozois, Robillard,
supra, and R. v. Zitek, (1986), 30 C.c.c. (3d) 60 (Ont. c.A.).
28
mischief at which s. 139(2) is directed suggests, in the context of sentences imposed on different
dates, that s. 139(2) is intended to ensure that each sentence retains its distinct character:
Carrignan, at ~44. [Italics in Carrignan judgment, Underlining Added]
80.
Justice Doherty, agreeing in the result in Carrignan, also commented on s. 139(2):
Section 139(1) creates a legal fiction. It provides that persons who are subject to multiple
sentences are "deemed to have been sentenced to one sentence". That deemed sentence is taken as
beginning on the first day of the first sentence and ending on the expiration of the last sentence.
Section 139(2) limits the legal fiction created by s. 139(1) by declaring that the fiction does not
affect the time at which any sentence imposed under the Criminal Code commences. A sentence
imposed under the Criminal Code begins the day the sentence is imposed (s. 719(1» or when a
previous sentence has been served if the sentence is made consecutive to that previous sentence
(s. 718.3(4».
81.
[at~66]
[Emphasis Added]
Thus, by virtue of s. 139(2), constituent sentences comprising the merged sentence retain
an individual quality. The commencement date for the legality of a jail sentence is the day of
sentencing forward; see also Zitek, supra. As with s. 719(1) of the Code, s. 139(2) of the CCRA
prohibits the backdating of the sentencing clock to the beginning of a completely separate
sentence. Sentences may overlap and result in an aggregate term in excess of two years, but s.
139(2) allows a probation order to remain valid so long as it attaches to a jail sentence of two
years or less.
82.
Section 139(2) confirms the intent of Parliament that the CCRA was not meant to
undermine the statutory regime governing probation orders. To allow other events to void a
probation order would be contrary to long-standing principles which establish that court orders
may only be reversed on appeal in relation to the same case. Imposition of a fit sentence is a
judicial responsibility and should not be undermined by an administrative statute.
c.
THE ABSURDITIES OF THE TWO YEAR RULE SHOULD INFORM THE
INTERPRETATION OF THE UNDERLYING STATUTORY PROVISIONS
The Traditional Approach to Sentence Merger Yields Absurd Results
83.
This Court's approach to interpreting sentencing provisions in the Criminal Code stresses
the need to avoid absurd results by searching for internal coherence and consistency in the
statute: Mathieu, at ~12; Middleton, at ~40. Yet the Two Year Rule can lead to illogical results
and frustrate efforts to rehabilitate offenders and protect the public through probation. Some of
the potential problems are set out below.
29
84.
Frustration of Sentencing Objectives.
Even a very short jail sentence added to an
unexpired sentence extending release beyond two years can void a probation order attached to
the earlier sentence.
For instance, in R. v. Pickell, [2007] O.l No. 2655 (Ont. S.C.J.), an
offender with an extensive record received two years less a day and three years' probation on
charges of impaired driving and driving while disqualified. Less than a month before the expiry
of his sentence, he received an eleven month consecutive sentence for similar offences. The
Ontario Probation Service sought to terminate his probation order on the basis of the Two Year
Rule. In refusing the application, the Court commented as follows:
This application raises the prospect that because Mr. Pickell was sentenced for an additional three
charges less than one month before the expiry date of his first sentence, he will receive less
supervision from the court than the December 2004 sentence contemplated and the rehabilitative
aspect of that sentence will not be implemented. This kind of result was described by the crown in
Hendrix as "absurd". For example, if an offender serving a sentence of two years plus three years
probation was sentenced to even one day of additional imprisonment then the entire probation
period would be quashed according to the approach in Miller. By being sentenced to an additional
offence, the offender would undergo a shorter period of mandatory supervision. It might be
argued that they would benefit from their additional criminal acts in the sense that they would
receive less supervision. They would definitely be deprived of the rehabilitative aspects of the
probation order. [at ~30] [Underlining added]
85.
Similarly in Mr. Knott's case, a week prior to the expiry of his 24 month sentence, he
received a six month sentence for assaulting a correctional officer. Any additional sentence of at
least one week would have voided his pending three year probation order. On the other hand, if
the sentencing court delayed sentencing a further week until his release, imposition of a full three
years' probation would have been lawful under the Two Year Rule. With similar concerns, the
Court in R. v. Toscano, supra, refused to invalidate a "carefully crafted" three year probation
order attached to a two year sentence because of a subsequent 15 day consecutive sentence.
86.
To a similar effect, this Court in Middleton, in the context of the possibility of a
subsequent offence retroactively invalidating an earlier intermittent sentence, stated as follows:
. .. 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 fmal 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). [at ~40] [Emphasis added]
30
87.
R. v. Lucas, 2009 NLCA 56, provides a most disconcerting example. The offender
received a two year sentence for breaking and entering with probation to follow for one year. At
the time of sentencing, he had unpaid fines for traffic violations. Before completing his sentence,
he applied to serve time in lieu of paying the outstanding fines due to inability to pay. A
provincial court judge granted the application and converted the outstanding fines into 58 days
consecutive incarceration. As the total sentence now violated the Two Year Rule, the Crown
instituted an appeal which the Court reluctantly allowed. [at
~1O]
In doing so, the Court
commented that by the simple measure of converting outstanding fines into a period of
imprisonment that makes the aggregate sentences more than two years, an offender could attempt
to orchestrate the result to invalidate a previously-imposed probation order that contains onerous
terms which the offender wishes to avoid. [at ~9) In the same way, a restitution or community
work service condition imposed as part of probation on a high provincial sentence could
potentially be voided by a subsequent short consecutive jail sentence.
88.
Hence, retroactive voiding of prior probation orders frustrates the objectives and
rehabilitative tools often carefully crafted by the original sentencing judge; see Lucas, at
~9.
In
Mr. Knott's case, the original sentencing judge opted for a shorter sentence with probation rather
than a longer federal sentence. Concurrent time on other charges was imposed when consecutive
time could well have been. Later invalidation of the probation order would defeat the purpose of
the sentencing judge in opting for a shorter rehabilitative sentence with probation. It would
damage the fitness of the original sentence.
89.
Perverse Incentives.
The ease with which long probation orders can sometimes be
subsequently voided by short jail sentences may provide a perverse incentive for an offender
sentenced to a near two year jail sentence to commit further offences: Lucas, supra, at ~9. In his
paper, "Probation Orders and the Two Year Rule: A Review", Mr. Justice Renaud wrote,
,96 A further concern is that the two-year rule permits an offender to manipulate the sentencing
regime. For example, let us consider the case of an individual sentenced to a "deuce less",
followed by probation for two years, and who does not wish to be bound by the terms of the
order. He or she could then commit a simple assault, be sentenced to a consecutive period of no
more than two days, and achieve the result of being freed from any Court-ordered restraints,
leaving aside the fetters that the parole authorities might select.
A similar self-serving result would occur if Mr. Knott's subsequent six month sentence could
result in the nullification of a probation order he originally requested to justify a lower sentence.
31
[T, August 18,2005, A.R. p. 146(45)-147(2),149(27-31),151(31-44),155(33-38)]
90.
The rule creates undesirable incentives for sentencing judges, too. The risk of subsequent
invalidation of a probation order attached to a high provincial sentence may lead sentencing
courts to opt for higher jail sentences, especially where an offender has other outstanding
charges: "It may be that the learned trial judge, had his attention been drawn to the problem,
would have imposed increased imprisonment if he could not rely on suitably fashioned
probation"; R. v. Amaralik, supra, at ~13. An interpretation which creates an incentive for higher
sentences appears contrary to sentencing principles in the Criminal Code that mandate
consideration of all available sanctions other than imprisonment and less restrictive sanctions if
available: ss. 718.2(d) and (e).
91.
Similarly, in the context of the availability of probation where an offender has served pre-
trial custody, this Court in Mathieu allowed the practical consequences of restricting probation
availability to inform the interpretation of the statutory provisions governing probation:
[22] Indeed, if it were to be concluded that a probation order is not available in cases where the
total of the time spent in pre-sentence custody and the sentence of imprisonment imposed by the
judge is more than two years, this could have a hannful consequence, as the judge might decide
to impose a longer period of incarceration. This interpretation, which must be rejected, would
have the unfortunate effect of unjustifiably increasing the length of time to be served in prison; in
addition, the probation order's effect of facilitating an offender's reintegration into society would
be unavailable to offenders who might benefit from it. [Emphasis added]
92.
In Mr. Knott's case, application of the Two Year Rule would appear to: (1) result in
Judge Moss imposing an inappropriately low and arguably unfit concurrent sentence three weeks
after the original sentence to ensure that probation would be available; (2) effectively reward the
Appellant for assaulting a Corrections officer by deleting all probation orders as a result of his
six month sentence imposed a week prior to the two year anniversary of his original sentence; (3)
prevent a court from imposing the entirely reasonable "no-contact" condition suggested by
Crown and defence on the subsequent eight month sentence on his sentence for assaulting
another inmate; and, (4) since probation would not be available as a sentencing option,
undesirably encourage any court to impose additional incarceration to protect the public if
sentencing Mr. Knott for another matter subsequent to his original sentence. And if probation
orders could be so easily defeated by the later merging of sentences, it is unclear whether Judge
Raven (who opted for a 24 month sentence with probation over a 30 month sentence) would have
32
originally imposed a 24 month sentence in the first place.
93.
Undue Constraints on Subsequent Sentencing. A judge who sentences an offender
already serving an unexpired sentence is constrained by the inability to impose further probation
should the total jail sentence exceed two years. In Mr. Knott's case, when he was sentenced a
week prior to his two year sentence expiring, he could not receive probation order if additional
incarceration extended his release by even one day. The same restriction would apply to an
offender being sentenced at the very end of a federal sentence if the old and new periods of
incarceration merged. This could be very problematic where, for instance, counselling as a
condition of probation - which, in British Columbia, is arranged and paid for by the Probation
Office -- cannot be imposed to address recidivism or reintegration concerns. By way of further
example, suppose that an offender on parole on a two year sentence assaults his girlfriend who
then wishes not to have contact with him. Two days before warrant expiry, he pleads guilty and
is sentenced for spousal assault. A sentencing judge wishes to impose a jail sentence and
probation with a condition to stay away from the girlfriend and her residence, but is prohibited
from imposing any probation by virtue of the Two Year Rule: see Pauls, supra; R. v. Hendrix
(1999), 137 C.C.C. (3d) 445 (Nfld. C.A.); R. v. Jeffers, 2006 ONC] 325, at ~13.
94.
Appellate courts are not immune from the undesirable lingering adverse effects of
sentence merger either. In R. v. K.K. (Kohl) (2009), 241 C.C.C. (3d) 284 (Ont. c.A.) the Court
allowed the offender's sentence appeal on a charge of criminal harassment by reducing his threeyear sentence to two years' imprisonment plus three years' probation. In doing so, the Court
commented on the reason for adding a probationary term: "The appellant is still relatively young,
and a lengthy period of probation with appropriate conditions may, finally, break the cycle of
release from jail, drug abuse and return to jail." [at ~44) However, after the reasons for judgment
were released, counsel for the appellant applied to vary the sentence because the newly imposed
probation order was illegal. Upon reconsideration, it was noted that the trial judge had made the
sentence consecutive to a previous sentence of five years and nine months, which the appellant
was still serving at the time of his sentencing: R. v. K.K. (Kohl) (2009) 244 C.C.C. (3d) 124
(Ont. c.A.); leave refused [2009] S.C.C.A. No. 130. Applying Miller and s. 139 of the CeRA,
the Court was forced to strike out the probation order. The Court's amendment, written prior to
the judgment in Middleton, appears influenced by the fact that counsel for the appellant and the
33
Crown at trial had advised the trial judge that probation was not available.
[ml6-7]
But if the
Court had known that probation was unavailable on the sentence appeal, it is not clear whether it
would have reduced the appellant's sentence at all.
95.
Greater Offending Yields Less Overall Monitoring.
In both Appellants' cases,
commission of additional offences and deletion of a probation order under the Two Year Rule
would yield an overall reduction in the total sentence and length of supervision. For Mr. Knott,
an additional six month jail sentence nullified a three year probation order. In D.A.P.'s case, he
subsequently committed a related offence (a break-in to the home of the mother of his previous
victims). Although the additional offence resulted in a substantial increase in custody, the result
actually reduced his net period of supervision by six months (from four to three and a half years).
The reduction in the length oftotal supervision is puzzling. D.A.P., who received additional jail
time after reoffending in a violent way, raising his sentence beyond two years, should not be
presumed to be less in need of rehabilitation and supervision than prior to his reoffending. And
by having his probation order voided, D.A.P.'s conditions of no contact with the two child
complainants, no contact with children under 16, abstaining from alcohol, attending counselling,
and supervision would now be deleted. [Probation Order ofD.A.P, A.R., pp. 91-92]
96.
Uncertainty.
Application of the Two Year Rule is also complicated by uncertainty.
Certainly, probation orders continue to be valid until overturned on appeal: R. v. Litchfield,
[1993] 4 S.C.R. 333, at 349. Yet, a conviction or sentence appeal on one of the component
sentences could add uncertainty to the application of the Two Year Rule. Consider, for instance,
an offender who receives an 18 month sentence with 2 years probation, appeals the sentence, and
the sentence appeal is dismissed. Toward the end of the sentence, he is sentenced to a
consecutive one year sentence for another matter. Could the offender then launch a second
sentence appeal to correct the now illegal probation order - an outcome he could not accomplish
without reoffending? In the same example, it is unclear what should occur to the original
probation order if the second sentence is the subject of a conviction appeal. Moreover, "illegal"
orders can be overlooked. In Mr. Knott's case, he pled guilty to breach of probation after release
and received 60 days incarceration, despite his probation order being rendered illegal (under the
state of the law at the time) by the Two Year Rule; see also Kohl, supra, where the issue
similarly went initially unnoticed.
34
97.
The above problems have occasionally been acknowledged in the case law. For example,
in Hendrix, supra, the Newfoundland Court of Appeal held that the voiding of an otherwise
valid order as a result of subsequent events "appear(s) to defy common sense". [at ~7) In Lucas,
supra, the Court suggested the frustration of earlier valid probation orders could ''undermine the
integrity of the overall sentencing approach." [at ~9) Some recent Ontario decisions have also
highlighted the flaws of the Two Year Rule. In Pickell, supra, the Court declined to terminate a
probation order that would be unlawful under the traditional analysis: "I cannot think that this
sort of result could have been the intent of Parliament when it enacted s. 731 of the Criminal
Code and s. 139 of the CCRA. " [at ~32] In R. v. Jeffers, supra, the Court sentenced an offender
serving the remnant of a federal sentence. Declining to follow Miller, the Court imposed a
further term of 22 months and probation. Referring the possibility of an offender with a few days
left on a federal sentence receiving an additional three months, the Court stated, "I cannot
imagine that Parliament intended Section 731 (1 )(b) to preclude my making an order of probation
that would assist the offender in that case in his rehabilitation." [at ~11] See also, R. v. Toscano,
supra, at ~13; R. v. McKinnon, 2008 BCCA 416, at ~7.
98.
The Appellants suggest that if the Two Year Rule is abandoned, inequality arises from
the availability of probation, to use their example, on consecutive sentences totalling three years
imposed at different sittings; when probation would not be available if the same sentence was
imposed at one sitting. [Appellants' Factum, ~~76-82] But the inability of the offender to constrain the
discretion of the sentencing judge to impose probation when sentences are imposed on different
days, as opposed to an omnibus hearing, is insufficient basis to retain the Two Year Rule. The
timing of sentencing, and the decision of whether to deal with multiple outstanding matters
together at the same sitting, is often in the hands of the accused. Where sentencing for multiple
matters occurs on different sittings, it is important that each court have the fullest possible
options available (especially if the offender has accumulated a record which makes a CSO no
longer a viable option). In passing sentence, each court would be aware of earlier sentences and
be mindful ofthe totality, but ought to have the fullest range ofless restrictive options available.
99.
The Respondent therefore submits nullification of probation orders where a combination
of imprisonment imposed on different occasions even slightly exceeds two years with the abovementioned results is not consistent with sentencing principles or the intention of Parliament.
35
Such absurdities result from the Two Year Rule affording a collateral attack on otherwise
entirely fit sentences in unrelated matters.
Probation Orders That Lose Their Relevance May be Amended or Deleted
100.
The probationary regime set out in the Criminal Code provides safeguards in case a
probation order loses its relevance after delayed commencement. Section 732.3(3) of the Code
provides that the optional conditions of a probation order may be changed or deleted at any time,
and the period of probation may be decreased. In extreme cases, a reduction in the probationary
term to one day could effectively delete an order. The application may be made by the offender,
the probation officer or the prosecutor (in practice in B.C., the probation officer often supports
appropriate amendments). The application may be made in chambers in the trial court (s.
732.3(4». A subsequent sentencing also provides an opportunity for an earlier probation order to
be reviewed. On such an application, the rules are generally relaxed; for instance, fresh evidence
can be put before the court. A probation officer may comment on the application and, where
appropriate, support the application. In short, the probation amendment process is expedient,
flexible, and informal.
101.
In contrast, the Two Year Rule currently requires offenders to undertake a cumbersome
appeals process, often requiring appointment of counsel, often an application to extend time, and
the setting of a hearing date perhaps months away for a sentence appeal before a division of the
Court. In the meantime, the offender may make a separate application for suspension of his
probation order pending appeal. The latter application requires an additional appearance and
supporting material. The complexity of the process may deter some probationers from correcting
out-of-date orders.
102.
The ability to amend or effectively delete a probation order that is significantly out of
date 16 offers provides a workable option to deal with any unfair effects upon the offender of
abandoning the Two Year Rule. Working within the existing statutory regime to amend out of
date orders is far preferable to a blunt rule that cuts short an offender's community supervision
because of the commission of additional offences.
16 The Appellants' example of a subsequent federal sentence substantially delaying commencement of a probation
order is not unique. Pursuant to s. 742.7 of the Criminal Code, the running of a conditional sentence is suspended
upon imposition of a subsequent conventional jail sentence. Yet, unlike CSOs, an application can be made to vary or
shorten a probation order.
36
D.
103.
THE BCCA'S REMANET ANALYSIS SHOULD NOT BE FOLLOWED
The BCCA's approach to the second scenario under which probation orders arise
(probation attaching to a subsequent jail sentence which, when added together with an unexpired
sentence, exceeds two years) would maintain a constraint on the discretion of a sentencing judge.
If the period of an unexpired sentence still to be served added together with the proposed
sentence of incarceration exceeds two years, the BCCA suggests the imposition of a probation
order would normally amount to an error in principle. [BCCA Reasons, A.R. pp. 118-119,
Respondent's Factum, supra, ~24, for the three scenarios]
~73; see
The Respondent submits that the Criminal Code
does not support this position, the discretion of a sentencing judge ought not to be fettered in this
way, and it unnecessarily restricts probation as a sentencing option.
104.
First, as noted above, reading into the Code a two year aggregate ceiling for the
commencement of probation orders is contrary to the statutory language in s. 731 of the Code, at
odds with other Code provisions which trigger certain consequences based upon the actual
sentence imposed at the time of sentencing, appears directly contrary to Mathieu, and runs
contrary to s. 719(1) which requires the sentence to begin when imposed. The BCCA recognized
as much when it acknowledged that on a "bare reading" of the words of s. 731 of the Criminal
Code and Mathieu, a sentencing judge has jurisdiction to impose a sentence of two years
(consecutive or concurrent to another sentence) followed by probation. Its holding that to do so
would be an error in principle rests upon on the erroneous "legal fiction" that any new
incarceration merges with incarceration the offender is still serving.
105.
Second, the remanet approach leads to some of the same mischief as the Two Year Rule
since it restricts the availability of probation on the new offence. The greater the time left on the
previous sentence, the greater is the restriction upon the discretion of sentencing judges in future
cases to craft fit and thoughtful sentences. For instance, when Mr. Knott was sentenced for
possessing a stolen vehicle by Judge Moss approximately three weeks into a two year sentence
on another matter, the sentencing judge would have been prohibited from imposing any
probation had the sentence exceeded three weeks of consecutive incarceration; see also, R. v.
Woodlijfe, 2009 BCCA 241. But, similar to the situation in Middleton respecting pre-sentence
custody, if a probation order is not available in such cases, this could have a harmful
consequence as the court might decide to impose a longer period of incarceration: Middleton, at
37
~22.
With application of the Two Year Rule, a sentencing judge in such a position faces two
undesirable choices: impose a longer period of incarceration to protect the public (since the
availability of community supervision is restricted); or provide the offender a free pass for the
additional offence by imposing concurrent time so as to allow a probation order to be imposed.
Where the new offence carries a minimum sentence which would put the total left to be served
over two years, probation would not be available at all and may create an incentive for
incarceration over and above the minimum.
106.
Third, the remanet approach rests upon the Currie decision which in tum relied on
authority (Young) dealing with the rejection of probation for multiple sentences adding up to two
years but imposed at the same sitting. The principle in Currie (which falls in the BCCA's second
scenario) was imported from a different context (the first scenario) without question. In neither
Currie nor Miller which followed, were the differences between the two, or the implications of
substantively blending sentences imposed on different dates, fully considered.
107.
Fourth, the remanet approach under the second scenario appears at odds with the BCCA' s
approach to the third scenario under which a subsequent sentence "of any length" does not
invalidate a prior probation order attached to incarceration. [BCCA Reasons, A.R. p. 120,
~78)
It is
inconsistent to allow for delayed commencement of probation in one situation but not the other.
108.
Fifth, the remanet approach rests on other misplaced assumptions. It embodies a
hesitation to delay commencement of probation for too long into the future; or for an offender to
be penalized by serving an unduly lengthy period of probation. Yet as noted above, other
sections of the Criminal Code (e.g. bail pending appeal) result in the delayed commencement of
probation orders. And probation is not penal but rehabilitative: R. v. Shoker, [2006] 2 S.C.R.
399, 2006 SCC 44, at ~1 O. The remanet approach also assumes a probation order cannot be later
amended or shortened if out-of-date. Yet it can be so amended.
109.
Finally, and more generally, the remanet approach needlessly undermines the availability
of probation as a rehabilitative sentencing tool. Probation, which the Appellants note evolved as
an alternative to incarceration, provides sentencing judges with the flexibility to impose
individualized conditions which give effect to the objectives of sentencing enumerated in s. 718
of the Code. If one of the goals of sentencing is to reduce reliance on incarceration as a
38
sentencing option and promote the reintegration and rehabilitation of repeat offenders in the
community, preservation of a lingering restriction on non-custodial sentencing options is
undesirable. Fines aside, the options available to a sentencing judge largely consist of
incarceration or community supervision. Limiting one promotes use of the other.
E.
CONCLUSION
Application to the Appellant, Damon Knott
11 O.
Mr. Knott's probation orders ought not to be declared invalid because of the Two Year
Rule. As the BCCA held, sentence merger does not apply so as to invalidate his probation
orders. On the contrary, his circumstances suggest long-term rehabilitation is in his best interest.
The pre-sentence report filed at Mr. Knott's sentencing in August 2005 noted, "given the
entrenched nature of his character, attention to these issues with Mr. Knott will require particular
patience and dedication." [Pre-Sentence Report, August 15, 2005, R.R., p. 25] A 2005 psychological
report stated, "Mr. Knott should be regarded as high risk, high needs, until such time as he
demonstrates a prolonged period of improved adjustment in the community." [T, December 3,2007,
R.R. 178(21-29)] Mr. Knott has only one conviction for breaching a probation order. It appears that
despite his dim history,probation may assist in his rehabilitation and protection ofthe public.
Application to the Appellant, D.A.P.
111.
Similarly with D.A.P., the Respondent submits his original probation order attached to
his conditional sentence is not automatically invalidated by his subsequent three year sentence.
As the BCCA held, s. 139 of the CCRA has no application in his situation and his probation
order, which had not yet come into effect, remains valid. [BCCA Reasons, AR. 122, m!83-85] Lengthy
probation for D.A.P. is appropriate given his long-term problems with alcohol and repetitive
assaultive behaviour. His reoffending by breaking into the residence of his victims' mother only
increases concern over his rehabilitation and protection of the public. It is therefore desirable to
preserve the conditions that he not have contact with his victims, not be alone with children
under 16, and attend counselling in the community. D.A.P.'s probation order ought to be upheld.
39
PART IV -- SUBMISSIONS ON COSTS
112.
The Respondent makes no submission on the issue of costs.
PART V - NATURE OF THE ORDER SOUGHT
113.
The Respondent respectfully requests that the appeals from sentence be dismissed and the
sentences for each Appellant be affinned.
Michael J. Brundrett
Counsel for the Respondent
Dated this 5th day of July, 2011
Vancouver, British Columbia
40
PART VI - TABLE OF AUTHORITIES
Paragraph
A.G. v. Leschenko, [1982] F.C.J. No. 169 (C.A.) ............................................................. 64, 77
Marcotte v. Deputy A.-G. Can., [1976] 1 S.C.R. 108, 19 C.C.C. (2d) 257 (S.C.C.) .............. 72
Paris v. Canada (Attorney General), 2001 FCA 186,278 N.R. 1........................................... 71
Thomson v. Canada (Department ofAgriculture), [1992] 1 S.c.R. 385 .................................. .45
R. v. Alberts, 2000 BCCA 628, 147 B.C.A.C. 90 ................................................................... 16
R. v. Amaralik (1984), 16 C.C.C. (3d) 22 (N.T.C.A.) ....................................................... 36.90
R. v. Bernier, 2003 BCCA 134, 177 C.C.C. (3d) 137 .............................................................. 70
R. v. Budreo (2000), 142 C.C.C. (3d) 225 (Ont.c.A.) ............................................................ 60
R. v. CA.M., [1996] 1 S.C.R. 500, 105 C.C.C. (3d) 327 ........................................................ 69
R. v. Callaghan (1973), 9 C.C.C. (2d) 125 (B.C.C.A.) ........................................................... 36
R. v. Carrignan, (2003), 172 C.C.C. (3d) 1 (Ont. C.A.) ............................................. 62, 63, 66,
............................................................................................ 68, 71, 72, 73, 74, 75, 76, 77, 79,80
R. v. Currie (1982),65 C.C.C. (2d) 415 (Ont. c.A.) ..................................... 35. 36,43,64, 106
R. v. Dozois (1981),61 C.C.c. (2d) 171 (Ont. C.A.) ........................................................ 64, 77
R. v. Engerdahl(1993), 33 B.C.A.C. 317 ............................................................................... 56
R. v. G.E.R., 2001 NFCA 56 ................................................................................................... 51
R. v. Goeujon, 2006 BCCA 261,209 C.C.C. (3d) 61 ............................................................. 54
R. v. Hasselwander, [1993] 2 S.C.R. 398, 81 C.C.C. (3d) 471 ............................................... .46
R. v. Hendrix (1999), 137 C.C.C. (3d) 445 (Nfld. c.A.) .................................................. 93, 97
R. v. Hennigar (1983),58 N.S.R. (2d) 110 (N.S.C.A.) ........................................................... 36
R. v. Ivan (2000), 148 C.C.C. (3d) 295 (B.C.C.A) ............................................................ .40, 41
R. v. Jeffers, 2006 ONC] 325 ............................................................................................ 93, 97
R. v.
xx (Kohl) (2009), 241 C.C.C. (3d) 284 (Ont. c.A.) ..................................................... 94
R. v. XX (Kohl) (2009), 244 C.C.C. (3d) 124 (Ont. C.A.) ......................................... 36, 94, 96
R. v. Litchfield, [1993] 4 S.C.R. 333, 86 C.C.c. (3d) 97 ......................................................... 96
R. v. Lucas, 2009 NLCA 56 .................................................................................. 87, 88, 89, 97
R. v. Mathieu, [2008] 1 S.C.R. 723, 2008 SCC 21, 231 C.C.C. (3d) 1.......................... 2, 25,27
...................................................................................................... 47,48,49,51,54,83,91, 104
41
R. v. McKinnon, 2008 BCCA 416,237 C.C.C. (3d) 345 ................................................... 65,97
R. v. Middleton, [200911 S.C.R. 674,2009 SCC 21, 244 C.C.C. (3d) 52 .................... 3, 25,51,
........................................................................................... 62, 66, 67, 68, 75, 76, 83, 86, 94, 105
R. v. Miller (1987),36 C.C.C. (3d) 100 (Ont. C.A.) ......................... 35, 36, 65, 78, 94, 97, 106
R. v. Nutter, et aL (1970), 7 C.C.C. (2d) 224 (B.C.C.A.) ........................................................ 37
R. v. Pauls, 2008 BCCA 322 .............................................................................................. 65, 93
R. v. Pickell, [2007] OJ. No. 2655 (Ont. S.CJ.) ............................................................... 84, 97
R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61 ................................................................... 58, 59
R. v. Robillard (1985),22 C.C.C (3d) 505 ......................................................................... 64, 77
R. v. Shoker, [2006] 2 S.C.R. 399,2006 SCC 44 ................................................................... 108
R. v. Toscano, 2011 ONCJ 155 .................................................................................... 35, 85, 97
R. v. WoodlijJ"e, 2009 BCCA 241 .......................................................................................... 105
R. v. Young, (1980), 27 C.R. (3d) 85 (B.C.C.A.) ....................................................... 35, 36,106
R. v. Zitek (1986),30 C.C.C. (3d) 60 (Ont. c.A.) .............................................................. 77, 81
Other Materials
Minutes of Proceedings and Evidence of the Standing Committee on Justice
and Legal Affairs re Bill C-150, House of Commons, 1st Sess., 28th ParI.,
No. 15 (26 March 1969) at 728-31.. .............................................................................. 72
House of Commons Debates, 1st Sess., 33rd ParI., Vol. V,
(12 September 1985) at 6560-61 .................................................................................... 74
Senate Standing Committee on Legal and Constitutional Affairs, Proceedings,
1st Sess., 35th ParI., No. 68 (30 November 1995) at 68:4 and 68:6 .............................. 75
Senate Standing Committee on Legal and Constitutional Affairs, Proceedings,
1st Sess., 35th ParI., No. 63 (9 November 1995) at 68:7-68:9 ........................................ 75
Working Group on Probation of the Uniform Law Conference of Canada .............................. 75
Senate Debates, 2nd Sess., 28th ParI., Vol. I (5 February 1970) at 498 .................................. 79
Gilles Renaud, "Probation Orders and the 'Two Year Rule': A Review,"
January 17, 2001 ............................................................................................................. 89
42
PART VII- STATUTORY PROVISIONS
Corrections and Conditional Release Act, S.C. 1992, c. 20
English
139.
(1) Where a person who is subject to a sentence that has not expired receives an additional
sentence, the person is, for the purposes of the Criminal Code, the Prisons and Reformatories Act and this
Act, deemed to have been sentenced to one sentence commencing at the beginning of the first of those
sentences to be served and ending on the expiration of the last ofthem to be served.
(2) This section does not affect the time of commencement, pursuant to subsection 719(1) of the
Criminal Code, of any sentences that are deemed under this section to constitute one sentence.
Francais
139.
(1) L'individu assujetti a une peine d'emprisonnement non encore expiree et qui est condamne a
une peine d'emprisonnement supplementaire est, pour l'application du Code criminel, de la Loi sur les
prisons et les maisons de correction et de la presente loi, repute n'avoir ete condamne qu'it une seule
peine commenyant Ie jour du debut de l'execution de la premiere et se terminant it l'expiration de la
derniere it purger.
(2) Le present article n'a pas pour effet de modifier la date fixee par Ie paragraphe 719(1) du
Code criminel pour Ie debut de I' execution de chacune des peines qui, aux termes du present article, sont
reputees n'en constituer qu'une.
Criminal Code, R.S.C. 1985, c. C-46
English
(1) Where a person is convicted of an offence, a court may, having regard to the age and character
of the offender, the nature of the offence and the circumstances surrounding its commission,
731.
(b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two
years, direct that the offender comply with the conditions prescribed in a probation order.
Francais
731. (1) Lorsqu'une personne est declaree coupable d'une infraction, Ie tribunal peut, vu l'age et la
reputation du delinquant, la nature de I'infraction et Ies circonstances dans Iesquelles elle a ete commise :
b) en plus d'infliger une amende au delinquant ou de Ie condamner it un emprisonnement
maximal de deux ans, ordonner que Ie delinquant se conforme aux conditions prevues dans une
ordonnance de probation.