R. v. Middleton

R. v. Middleton
Collection
Supreme Court Judgments
Date
2009-05-22
Neutral citation
2009 SCC 21
Report
[2009] 1 SCR 674
Case number
32138
Judges
McLachlin, Beverley; Binnie, William Ian Corneil; LeBel, Louis; Fish, Morris J.; Charron, Louise; Rothstein, Marshall; Cromwell, Thomas Albert
On appeal from
Ontario
Subjects
Criminal law
Notes
SCC Case Information: 32138
Decision Content
SUPREME COURT OF CANADA
Citation: R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674
Date: 20090522
Docket: 32138
Between:
Timothy Middleton
Appellant
and
Her Majesty The Queen
Respondent
Coram: McLachlin C.J. and Binnie, LeBel, Fish, Charron, Rothstein and Cromwell JJ.
Reasons for Judgment:
(paras. 1 to 54)
Concurring Reasons:
(paras. 55 to 60)
Reasons Dissenting in Part:
(paras. 61 to 113)
Fish J. (McLachlin C.J. and LeBel, Charron and Rothstein JJ. concurring)
Binnie J.
Cromwell J.
______________________________
R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674
Timothy Middleton Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Middleton
Neutral citation: 2009 SCC 21.
File No.: 32138.
2009: January 20; 2009: May 22.
Present: McLachlin C.J. and Binnie, LeBel, Fish, Charron, Rothstein and Cromwell JJ.
on appeal from the court of appeal for ontario
Criminal law — Sentencing — Intermittent sentences — Conditional sentences — Accused convicted of assault causing bodily harm, uttering a death threat and pointing a firearm and receiving 90‑day sentence of imprisonment to be served intermittently plus two concurrent 18‑month conditional sentences to be served in community plus probation — Whether imposition of conditional sentence of more than 90 days renders intermittent sentence illegal — Whether intermittent sentence must be served on consecutive days — Whether conditional sentence is “sentence of imprisonment” within meaning of s. 732(1) of Criminal Code — Criminal Code, R.S.C. 1985, c. C‑46, s. 732(1) , (3) — Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 139 .
The accused was sentenced to 90 days’ imprisonment, to be served intermittently, for an assault causing bodily harm committed in September 2004. At the same hearing, he was immediately thereafter sentenced to two concurrent 18‑month conditional sentences for uttering a death threat and pointing a firearm in February 2005. The trial judge also ordered three years’ probation. The Court of Appeal held that the imposition of the conditional sentences in addition to the intermittent sentence did not render the intermittent sentence unlawful in virtue of s. 732(1) of the Criminal Code . It held also that because the intermittent sentence preceded the conditional sentences, and the trial judge did not order otherwise, s. 732(3) of the Code required the accused to serve the 90‑day sentence on consecutive days. The balance of the sentence remained unchanged.
Held (Cromwell J. dissenting in part): The appeal should be allowed and the sentences imposed by the trial judge affirmed.
Per McLachlin C.J. and LeBel, Fish, Charron and Rothstein JJ.: Imposing a conditional sentence of more than 90 days cannot render illegal an unexpired intermittent sentence imposed on the same offender for a different offence. It is apparent from the words “confinement” and “prison” in s. 732(1) that this provision contemplates only custodial sentences of imprisonment. Conditional sentences are, by definition, meant to be served in the community, not in prisons. To conclude that they are sentences of imprisonment within the meaning of s. 732(1) is inconsistent not only with the plain wording and a purposive and contextual interpretation of the provision, but also with the express terms adopted by Parliament in providing for intermittent sentences and with the distinct purposes of conditional and intermittent sentences. Such a conclusion would, as well, disregard the valid sentencing objectives of the trial judge in this case and would unduly limit the discretion of other trial judges to render similarly fit sentences where they conclude that a custodial sentence is required. Moreover, “imprisonment” does not bear a uniform meaning for all purposes of the Criminal Code . In several instances, as in s. 732 , “sentence of imprisonment” or “term of imprisonment” necessarily contemplate incarceration in a manner that cannot include conditional sentences. As well, a harmonious reading of the English and French versions of s. 732 clarifies that it contemplates only custodial sentences. [6] [8] [10‑11] [14] [27]
Section 139 of the Corrections and Conditional Release Act does not contemplate conditional sentences and has no application to intermittent sentences. It is found within Part II of the Act which does not apply to conditional sentences. Moreover, s. 99(1) of the Act excludes a person who receives a conditional sentence while serving only an intermittent sentence from the definition of “offender” for the purposes of Part II. A purposive interpretation of s. 139(1) also militates against its application to conditional sentences. Parliament enacted s. 139 to simplify the calculation of multiple custodial sentences in order to facilitate the administration of parole and statutory remission, an object not engaged by conditional sentences. [7] [29‑34]
Although the trial judge pronounced the intermittent sentence before the conditional sentences, as a matter of principle, nothing in this case should turn on the order in which the sentences were pronounced. The accused is not required by virtue of s. 732(3) of the Code to serve his intermittent sentence on consecutive days because a purposive and contextual reading of the expression “sentence of imprisonment” in s. 732(3) makes it clear that it does not contemplate conditional sentences. [36] [39-40]
While chaining intermittent sentences beyond the 90‑day limit defeats the object of s. 732(1) and the purpose of intermittent sentences, combining intermittent and conditional sentences can serve the purposes of both types of sentences. This case illustrates how intermittent and conditional sentences can be effectively combined to take appropriate advantage of their complementary purposes. [45‑47] [53]
Per Binnie J.: It is unnecessary to resolve the controversy over the scope and application of s. 139 of the Corrections and Conditional Release Act . The narrow issue on this appeal can and ought to be decided narrowly. The availability of an intermittent sentence in this case depends on s. 732(1) of the Criminal Code . By its terms s. 732(1) presupposes that a sentence within its purview can be served intermittently. Although conditional sentences are sentences of imprisonment without incarceration, they do not lend themselves to being served intermittently. On the face of it, therefore, s. 732(1) has no application to, and does not bar, the conditional sentences in this case. The “sentence of imprisonment” referred to in the opening words of s. 732(1) is the same “sentence” as “the sentence” mentioned elsewhere in the subsection. If the later references do not (because they cannot) include a conditional sentence, then the opening reference also excludes conditional sentences. There is no need to attribute different meanings to the same word in the same subsection. Since textually and contextually s. 732(1) does not extend to conditional sentences, the issue of a merger of the sentences in this case to form a single period of imprisonment does not arise. Accordingly the Corrections and Conditional Release Act has no application. The conditional sentences imposed by the trial judge were lawful. [55‑59]
Per Cromwell J. (dissenting in part): The intermittent sentence was illegal and should be set aside. The parties agree that if a conditional sentence is a "sentence of imprisonment" in s. 732(1) , then an intermittent sentence is not available in this case because, as a result of s. 139 of the Corrections and Conditional Release Act , the sentences in this case merge to form a single period of imprisonment that exceeds 90 days. The words “sentence of imprisonment” include a conditional sentence of imprisonment. The power in s. 732(1) to order that a sentence of imprisonment be served intermittently is limited to sentences of imprisonment of 90 days or less. Accepting the parties’ premise, as a result of s. 732(1) of the Criminal Code , a 90‑day portion of the merged sentence cannot be served intermittently. [61] [63] [76] [102‑103]
The question of whether a sentence is a sentence of imprisonment is distinct from the question of how that sentence is to be served. While imprisonment generally results from a sentence of imprisonment, not all sentences of imprisonment result in the offender being imprisoned while serving that sentence. A conditional sentence is a sentence of imprisonment which the court directs to be served in the community. The manner in which the sentence is served does not alter its nature as a sentence of imprisonment. This distinction is important for the interpretation of s. 732(1) . This provision is engaged only if “the court imposes a sentence of imprisonment of ninety days or less”. These words refer to the nature of the sentence. The Criminal Code , however, treats the conditional aspect of a conditional sentence, that it be served in the community, as relating to the manner in which the sentence of imprisonment is to be served. Where Parliament intends that the words “sentence of imprisonment” and equivalent expressions exclude conditional sentences, it uses language placed in a context which makes this clear. There is no such contrary indication in s. 732 . Nothing in the text or context of s. 732(1) would justify a departure from the grammatical and ordinary meaning of the words “sentence of imprisonment” in that section. [70‑71] [73‑74] [80] [101]
The Court of Appeal erred not only in holding that the intermittent sentence was legal, but also in concluding that it had to be served on consecutive days by virtue of s. 732(3) of the Code. The Court of Appeal’s interpretation of s. 732(3) gives inconsistent meanings to the words “sentence of imprisonment” within s. 732. It also makes too much turn on the order in which sentences are imposed. To have the application of the section turn on the many chronological possibilities that may occur in the sentencing process would make its operation arbitrary and impractical. Finally, this approach thwarts the clear intent of the sentencing judge. Where, as here, a sentencing judge imposes an intermittent sentence and, as part of the same sentencing hearing, imposes another sentence of imprisonment that can legally be combined with it, it should be inferred that the sentencing judge has “otherwise order[ed]” and that the intermittent sentence is to be served intermittently. [105] [108‑110]
Cases Cited
By Fish J.
Considered: R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Fletcher (1982), 2 C.C.C. (3d) 221; R. v. Aubin (1992), 72 C.C.C. (3d) 189; R. v. McLeod, [1993] Y.J. No. 17 (QL); R. v. Drost (1996), 172 N.B.R. (2d) 67; R. v. Frechette, 2001 MBCA 66, 154 C.C.C. (3d) 191; R. v. Squibb, 2006 NLCA 9, 253 Nfld. & P.E.I.R. 285; R. v. Robert, 2007 QCCA 515, [2007] Q.J. No. 2821 (QL); R. v. Power (2003), 176 C.C.C. (3d) 209; referred to: Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; R. v. Carrignan (2003), 172 C.C.C. (3d) 1; R. v. Vajdl, 2004 MBQB 167, 186 Man. R. (2d) 149; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Lyver, 2007 ABCA 369, 229 C.C.C. (3d) 535.
By Cromwell J. (dissenting in part)
R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61; R. v. Fletcher (1982), 2 C.C.C. (3d) 221; R. v. Aubin (1992), 72 C.C.C. (3d) 189; R. v. McLeod, [1993] Y.J. No. 17 (QL); R. v. Drost (1996), 172 N.B.R. (2d) 67; R. v. Frechette, 2001 MBCA 66, 154 C.C.C. (3d) 191; R. v. Squibb, 2006 NLCA 9, 253 Nfld. & P.E.I.R. 285; R. v. Robert, 2007 QCCA 515, [2007] Q.J. No. 2821 (QL); Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530; Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385; R. v. Power (2003), 176 C.C.C. (3d) 209.
Statutes and Regulations Cited
Corrections and Conditional Release Act, S.C. 1992, c. 20, ss. 99(1) “offender”, 120.2(1), 127(1), 128(1), 130(3.2), (3.3), 139.
Criminal Code, R.S.C. 1985, c. C‑46, ss. 718.2 (e), 719(4) , (5) , 731 , 732 , 742 , 742.1 , 742.6 , 742.7 , 743.3 .
Parole Act, R.S.C. 1970, c. P‑2, s. 14(1).
Parole Act, R.S.C. 1985, c. P‑2, s. 2 “inmate”.
Authors Cited
Canada. Standing Senate Committee on Legal and Constitutional Affairs. Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 68, 1st Sess., 35th Parl., November 30, 1995, pp. 68:4, 68:6.
APPEAL from a judgment of the Ontario Court of Appeal (Weiler, Gillese and LaForme JJ.A.), 2007 ONCA 538, 227 O.A.C. 59, [2007] O.J. No. 2900 (QL), 2007 CarswellOnt 4722, varying a sentence imposed by Waugh J., 2006 CarswellOnt 9388. Appeal allowed, Cromwell J. dissenting in part.
Gregory Lafontaine and Vincenzo Rondinelli, for the appellant.
Andrew Cappell and Alexandra Campbell, for the respondent.
The judgment of McLachlin C.J. and LeBel, Fish, Charron and Rothstein JJ. was delivered by
Fish J. —
I
[1] The appellant, Timothy Middleton, was convicted at trial for having committed an assault causing bodily harm to his partner at the time, Lisa Dubreuil. For that offence, he was sentenced to 90 days’ imprisonment, to be served intermittently. Mr. Middleton was convicted as well for having uttered a death threat and for pointing a firearm some five months after the assault. And for those offences, he received 18-month conditional sentences of imprisonment, to be served concurrently, followed by probation for the ensuing three years.
[2] It is conceded that all three sentences were legal in themselves. It is conceded as well that they were carefully crafted by the trial judge in compliance with the sentencing principles and the correctional objectives applicable in the circumstances of this case. Neither the appellant nor the respondent has drawn to our attention a single provision of the Criminal Code, R.S.C. 1985, c. C-46 , that prohibited either the intermittent sentence or the concurrent conditional sentences when each was imposed. Nor has our attention been drawn to a single judgment by any Canadian court precluding the combination of sentences imposed by the trial judge in this case.
[3] Justice Cromwell nonetheless finds that the intermittent sentence was rendered illegal by the conditional sentences in light of a sentence calculation provision set out in a different statute for purposes that, as we shall presently see, have no application here.
[4] My colleague’s reasons may be briefly summarized this way. Intermittent sentences are governed by s. 732 of the Criminal Code . In virtue of s. 732(1) , the court may order that a sentence of imprisonment be served intermittently where the term imposed does not exceed 90 days. Conditional sentences are sentences of imprisonment. Section 139 of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (“CCRA ”), requires that the 90-day intermittent sentence and the 18-month conditional sentences imposed in this case be “merged” — or amalgamated — to form a single sentence of 18 months’ duration. Since this merged sentence exceeds the 90-day maximum permitted by s. 732(1) , the intermittent sentence imposed by the trial judge was retrospectively rendered illegal by the subsequent imposition of the conditional sentences, though the conditional sentences were themselves both legal and fit.
[5] It will immediately be recognized that the result proposed by Justice Cromwell would only be warranted if both of its essential premises are correct: first, that a conditional sentence is a sentence of imprisonment within the meaning of s. 732(1) ; and second, that s. 139 of the CCRA requires that the intermittent and conditional sentences imposed by the trial judge be treated, for the purposes of s. 732(1) , as a single sentence of imprisonment.
[6] In my respectful view, neither proposition withstands scrutiny. To hold that a conditional sentence is a sentence of imprisonment within the meaning of s. 732(1) of the Criminal Code and s. 139 of the CCRA is to disregard the plain wording of the provisions, their legislative purposes, and the nature and object of conditional sentences. It would disregard as well the valid sentencing objectives of the trial judge in this case and would unnecessarily, in the future, deprive judges of their ability to render similarly fit sentences where they conclude that a custodial sentence is required.
[7] For the reasons that follow, I have concluded that conditional sentences are not contemplated by either s. 732(1) of the Criminal Code or s. 139 of the CCRA , and that s. 139 has no application to the intermittent sentence imposed in this case.
II
[8] The decisive question on this appeal is whether the imposition of a conditional sentence of more than 90 days renders illegal an unexpired intermittent sentence imposed on the same offender but for a different offence. As I have already indicated, that question can only be answered in the affirmative if we conclude, first, that a conditional sentence is a “sentence of imprisonment” within the meaning of s. 732(1) of the Criminal Code ; and second, that s. 139 of the CCRA applies to both conditional and intermittent sentences.
[9] Section 732(1) reads:
732. (1) Where the court imposes a sentence of imprisonment of ninety days or less on an offender convicted of an offence, whether in default of payment of a fine or otherwise, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, order
(a) that the sentence be served intermittently at such times as are specified in the order; and
(b) that the offender comply with the conditions prescribed in a probation order when not in confinement during the period that the sentence is being served and, if the court so orders, on release from prison after completing the intermittent sentence.
[10] It is apparent from the words “confinement” and “prison” that s. 732(1) contemplates custodial sentences of imprisonment and not conditional sentences of imprisonment, which are served in the community. In my view, this textual consideration is alone sufficient to warrant the conclusion that conditional sentences are not “sentences of imprisonment” within the meaning of s. 732(1) .
[11] In arriving at an opposite conclusion, Justice Cromwell relies on the principle of statutory interpretation which favours giving a word or phrase “the same interpretation or meaning whenever it appears in an act”, unless “the contrary is clearly indicated by the context” (Thomson v. Canada (Deputy Minister of Agriculture), [1992] 1 S.C.R. 385, at p. 400). Applying this same rule of interpretation, it seems to me plain that a conditional sentence is not a “sentence of imprisonment” within the meaning of s. 732(1) . As mentioned at the outset, s. 732(1) (b) contemplates sentences that are served “in confinement” and probation orders “on release from prison after completing the intermittent sentence”. Conditional sentences are, by definition, meant to be served in the community and not in prisons. To conclude that they are sentences of imprisonment within the meaning of s. 732(1) is thus inconsistent with a purposive and contextual interpretation of the provision, and also the express terms adopted by Parliament in providing for intermittent sentences.
[12] In my respectful view, we cannot reasonably hold that a conditional sentence is a sentence of imprisonment for some purposes under s. 732(1) (such as determining an offender’s eligibility for an intermittent sentence), but not for others (such as permitting the intermittent service of a conditional sentence). And without straining the plain language of s. 732(1) , we cannot reasonably find that a conditional sentence is a sentence of imprisonment for all purposes of s. 732 , as urged by the appellant.
[13] To conclude that conditional sentences are sentences of imprisonment within the meaning of s. 732(1) is inconsistent as well with the distinct and different purposes of conditional sentences on the one hand, and intermittent sentences on the other. Justice Cromwell has explained this well in relating why the trial judge was moved by different reasons and different sentencing objectives to impose conditional sentences for two offences and an intermittent sentence for the other (notably at paras. 68, 69 and 111). It is thus hardly surprising that no intermittent conditional sentences of imprisonment — an anomalous notion at best — have been brought to our attention.
[14] Moreover, contrary to the appellant’s submission, “imprisonment” in the phrases “sentence of imprisonment” and “term of imprisonment” does not bear a uniform meaning for all purposes of the Criminal Code . In several instances, these terms necessarily contemplate incarceration. Section 718.2 (e), mentioned by the parties, is hardly the sole example. Section 732(1) must itself be taken as another since, as we have already seen, s. 732(1) refers explicitly to “confinement during the period that the sentence is being served” and “release from prison after completing the intermittent sentence”.
[15] Likewise, s. 719(4) provides that “a term of imprisonment . . . commences . . . on the day on which the convicted person is arrested and taken into custody under the sentence”. Section 719(5) is framed in analogous terms. Manifestly, conditional sentences of imprisonment are not terms of imprisonment within the meaning of either provision. The same is true of s. 743.3 , which provides that “[a] sentence of imprisonment shall be served in accordance with the enactments and rules that govern the institution to which the prisoner is sentenced”. Here again, a conditional sentence can hardly be characterized as a “sentence of imprisonment” within the meaning of the provision.
[16] Section 742.7(1) is yet another instance where the Criminal Code speaks of imprisonment in a manner that can hardly include conditional sentences. A finding that it does would mean that a conditional sentence of imprisonment is suspended if, while it is being served, the offender receives a second conditional sentence of imprisonment. This can hardly be what Parliament intended.
[17] On the contrary, reading s. 742.7 as a whole, I think it obvious that Parliament has drawn a clear and sharp distinction in that section between a conditional sentence being served in the community, and a custodial period served for breach of a conditional sentence order. Where an offender is ordered under s. 742.6 of the Code to serve all or part of an unexpired conditional sentence in custody, this custodial period is explicitly treated in s. 742.7(3) as imprisonment for the purposes of s. 139 of the CCRA ; the rest of the conditional sentence, served in the community, is not. If s. 139 were intended to apply to conditional sentences, s. 742.7(3) would be entirely superfluous. At the very least, it is clear in this light that s. 139 applies to conditional sentences only if they result in incarceration — and, even then, only to the custodial period. The conditional sentences in this case involve no custody at all.
[18] I am of course aware that the Court, in holding that “imprisonment” in s. 718.2 (e) signifies “incarceration”, referred to the difference between the English and French versions of the Code: see R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 95. As pointed out at the hearing of this appeal, however, a purposive and contextual reading of s. 718.2 (e) would necessarily have arrived at the same result in the absence of the mentioned linguistic inconsistency. As Justice Cromwell recognizes at para. 87 of his reasons, “reading the term ‘imprisonment’ in s. 718.2 (e) as including a conditional sentence was exactly contrary to the obvious legislative intent” of Parliament in creating conditional sentences as an alternative to incarceration.
[19] And there is no conflict at all between the English and French versions in any of the other examples I have identified. Yet in every instance mentioned, “imprisonment” necessarily refers to “incarceration” — and not to conditional sentences served in the community.
III
[20] Justice Cromwell has introduced in his reasons a “critical” distinction (at para. 70) that appears to resurrect the Court’s rejection, with respect to conditional sentences specifically, of a “two-step” sentencing process: Proulx. Chief Justice Lamer, speaking for the Court, explained (at para. 52) that:
This two-step process does not correspond to the reality of sentencing. In practice, the determination of a term of imprisonment is necessarily intertwined with the decision of where the offender will serve the sentence. A judge does not impose a fixed sentence of “x months” in the abstract, without having in mind where that sentence will be served . . . . Furthermore, when a conditional sentence is chosen, its duration will depend on the type of conditions imposed. Therefore, the duration of the sentence should not be determined separately from the determination of its venue. [Emphasis added; citations omitted.]
[21] I have four brief comments regarding Justice Cromwell’s proposed distinction between a sentence and the manner in which it is to be served.
[22] First, this distinction was never raised by either the appellant or the Crown, nor considered by any court at any stage of the proceedings below. It is not mentioned at all in the factum of either party or the authorities they have cited, and was not referred to, explicitly or implicitly, by counsel before us — or by the Court — at the hearing of the appeal.
[23] Second, my colleague (at paras. 93 and 94) cites the reference to “the institution to which the prisoner is sentenced” in s. 743.3 of the Code as an example of qualifying language sufficient to indicate that “sentence of imprisonment” in that provision refers to custodial sentences only. If this is correct, as I believe it is, it can hardly be said that the references in s. 732(1) (b) to “confinement” and “release from prison” do not qualify the term “sentence of imprisonment” in precisely the same way. On my colleague’s own hypothesis, it follows that Parliament has qualified the term “sentence of imprisonment” in s. 732(1) to make clear that it contemplates custodial sentences only.
[24] Third, the proposed distinction is entirely academic in the context of this appeal, where the issue is whether a conditional sentence is a sentence of imprisonment within the meaning of s. 732(1) of the Criminal Code . Justice Cromwell agrees that a conditional sentence cannot be served intermittently. He nonetheless finds that “sentence of imprisonment” in s. 732(1) refers to both custodial and conditional sentences. My colleague rests this conclusion on his proposed distinction between a sentence of imprisonment and the manner in which it is served. But this distinction hardly explains why “sentence of imprisonment” in s. 732(1) — which concerns custodial sentences, since only custodial sentences can be served intermittently — refers to both custodial and conditional sentences.
[25] Finally, it is evident from the terms of the provision and from its very nature that s. 732(1) permits — and governs — the imposition of custodial terms of imprisonment, which alone may be served intermittently. This is apparent not only from the words “confinement” and “prison” that appear in s. 732(1) , but also from the English and French versions of s. 732(2), read harmoniously.
[26] Section 732(2) provides:
(2) An offender who is ordered to serve a sentence of imprisonment intermittently may, on giving notice to the prosecutor, apply to the court that imposed the sentence to allow it to be served on consecutive days.
(2) À la condition d’en informer au préalable le poursuivant, le délinquant qui purge une peine à exécution discontinue peut demander au tribunal qui a infligé la peine de lui permettre de la purger de façon continue.
[27] As we can see, “sentence of imprisonment” in the English version of s. 732(2) appears in the French version as “une peine à exécution discontinue”. Reading both versions together, it seems perfectly clear both from the terms used and from its legislative purpose that s. 732(2) contemplates custodial sentences only. Parliament can hardly have intended to provide that offenders serving conditional sentences can choose to serve those sentences either intermittently or on consecutive days.
[28] With respect, I would thus reject the distinction invoked by Justice Cromwell and would instead resolve the question that concerns us here on the textual, contextual and purposive basis outlined in these reasons. Interpreting s. 732(1) this way better conforms to the sentencing purposes and correctional objectives for which Parliament separately established intermittent and conditional sentences.
IV
[29] This brings me to s. 139 of the CCRA , considered purposively and in the context of this case. Section 139 is found in Part II of the Act, which deals with “Conditional Release, Detention and Long-Term Supervision”. None of these matters have any application at all to conditional sentences. Offenders subject to a conditional sentence order are not eligible for parole: Proulx, at para. 42. Nor are they in “detention” or under “long-term supervision” within the meaning of the CCRA .
[30] Moreover, when he received his conditional sentences, the appellant was “a person whose only sentence [was] a sentence being served intermittently pursuant to section 732 of the Criminal Code ”. Section 99(1) of the CCRA excludes such persons from the definition of “offender” for the purposes of Part II of the Act — which of course contains s. 139(1) . This alone, I should think, is sufficient to demonstrate that s. 139 of the CCRA is of no assistance whatever to the appellant in this case.
[31] It might be thought that s. 99(1) does not apply to s. 139(1), since s. 139(1) refers to a “person” serving a sentence and does not use the word “offender”. In virtue of s. 99(1) , however, a “person” serving a sentence is an “offender” — that is what “offender” means. This is evident from the use of the term “offender” in ss. 120.2(1) , 130(3.2) and 130(3.3) of the CCRA to refer to the “person” to whom s. 139(1) applies. And it is not without interest that s. 732 of the Criminal Code uses the words “person” and “offender” interchangeably.
[32] Quite apart from this exclusionary definition of offender, a purposive interpretation of s. 139(1) also militates against its application here. The object of the provision was well explained by the Director General of Corrections in the Department of the Solicitor General of Canada when the current s. 139(1) was being considered by the Standing Senate Committee on Legal and Constitutional Affairs:
So‑called “sentence calculation” is a bit of a misnomer. It refers to the way we calculate parole eligibility dates rather than sentences themselves, something which we found necessary given the multiple sentences that form an infinite combination of sentences, both concurrent and consecutive.
. . .
To deal with the complexity of sentences and the calculation of eligibility dates that allow us to administer sentences in a rational way, the technique of sentence‑merging was developed to establish a single set of eligibility dates on the total prison term comprised of however many sentences. To do that, the Corrections and Conditional Release Act , or CCRA , provides for all sentences to be merged into a single term.
(Proceedings of the Standing Senate Committee on Legal and Constitutional Affairs, Issue No. 68, 1st Sess., 35th Parl., November 30, 1995, at pp. 68:4 and 68:6 (emphasis added))
[33] In this regard, reference may be had as well to R. v. Carrignan (2003), 172 C.C.C. (3d) 1 (Ont. C.A.), where, after considering the purpose and legislative history of s. 139 of the CCRA and its predecessors, Cronk J.A. (Catzman J.A. concurring) concluded:
Accordingly, the historical antecedents of s. 139 of the CCRA confirm, as urged by the amicus curiae in this case, that the device of sentence merger was intended to facilitate sentence calculation for sentence administration purposes. As emphasized by the then Solicitor General of Canada in 1995, it was not intended to “change the way consecutive and concurrent sentences work together”. [para. 36]
And again:
In my view, the combined effect of ss. 139(1) and (2) of the CCRA in connection with consecutive sentences is to ensure, for parole eligibility purposes, that the term of imprisonment of each consecutive sentence is totalled and parole eligibility is calculated based on the total term of the merged sentence. The intent and ambit of the sections are directed to that outcome, and to no broader purpose. [para. 49]
(Emphasis added in both paragraphs.)
[34] In short, Parliament enacted s. 139 to simplify the calculation of multiple custodial sentences in order to facilitate the administration of parole and statutory remission. Thus understood, s. 139(1) is inapplicable to a conditional sentence served in the community which — as the Court held in Proulx — is not “subject to reduction through parole” (para. 42).
[35] Justice Cromwell mentions (at para. 103) that “the parties were not in disagreement about the effect of this provision and their arguments were premised on its application to conditional sentences”. In fact, neither the appellant nor the respondent mentioned s. 139 at all in either their written or oral submissions in this Court. Their arguments turned instead on whether a conditional sentence is a “sentence of imprisonment” within the meaning of s. 732(1). The appellant argued that it is; the respondent, that it is not. As I have already made plain, I agree with the respondent and, in my view, that alone is sufficient to dispose of the appeal.
V
[36] In this case, the trial judge pronounced the intermittent sentence before the conditional sentences. The Court of Appeal held that both the intermittent and conditional sentences were entirely legal, but that the appellant was nonetheless required, in virtue of s. 732(3) , to serve the intermittent sentence on consecutive days, rather than intermittently, as ordered moments earlier by the trial judge.
[37] Section 732(3) provides:
(3) Where a court imposes a sentence of imprisonment on a person who is subject to an intermittent sentence in respect of another offence, the unexpired portion of the intermittent sentence shall be served on consecutive days unless the court otherwise orders.
[38] Justice Cromwell concludes that the Court of Appeal erred in finding that the trial judge did not “otherwise orde[r]”, within the meaning of s. 732(3) . Not only were the intermittent and conditional sentences handed down by the same judge on the same day in a single set of reasons, but the trial judge also made clear his intention that the intermittent sentence be served intermittently, notwithstanding the conditional sentences imposed on the other counts. The reasons of the trial judge would thus satisfy the requirement of s. 732(3) to “otherwise orde[r]” — if s. 732(3) applied, as a matter of law, to conditional sentences.
[39] I agree with the Crown that it does not. A purposive and contextual reading of “sentence of imprisonment” in s. 732(3) makes clear that it does not contemplate conditional sentences at all. As Sinclair J. observed in R. v. Vajdl, 2004 MBQB 167, 186 Man. R. (2d) 149, at para. 11:
Clearly, it must have been the intention of Parliament that an intermittent sentence should not be converted to straight time upon the imposition of a conditional sentence. The intent of an intermittent sentence and a conditional sentence are the same — to allow the accused to serve his sentence in the community to the fullest extent possible.
In short, a conditional sentence is not a “sentence of imprisonment” within the meaning of s. 732(1), (2) or (3) .
[40] As a matter of principle, I agree with Justice Cromwell that nothing in this appeal should turn on the order in which the sentences were pronounced. But this hardly favours the appellant’s case. On the appellant’s view, a 90‑day intermittent sentence can be rendered illegal by the imposition in its final hours of another sentence of imprisonment (conditional or otherwise) of more than a single day. The intermittent sentence, legal when imposed and final for all legal purposes (never having been set aside on appeal), would in this example be almost entirely served, yet retroactively invalidated by a subsequent sentence for a different offence. Any different sequence of sentences leading to the same result would produce equally absurd effects, contrary to the “well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 27).
VI
[41] Finally, a brief word regarding the four decisions cited by Justice Cromwell in support of the proposition that “it is the total length of the merged sentences that governs eligibility for an intermittent sentence” (para. 76) (R. v. Fletcher (1982), 2 C.C.C. (3d) 221 (Ont. C.A.); R. v. Aubin (1992), 72 C.C.C. (3d) 189 (Que. C.A.); R. v. McLeod, [1993] Y.J. No. 17 (QL) (C.A.); and R. v. Drost (1996), 172 N.B.R. (2d) 67 (C.A.)).
[42] First, these decisions did not deal at all with the issue that concerns us here: none of them held that a 90-day intermittent sentence is rendered illegal by a contemporaneous or subsequent conditional sentence of any duration. All four cases, unlike the present matter, concerned consecutive custodial sentences cumulatively exceeding the 90-day limit for intermittent sentences established by s. 732(1) or its antecedents. None mentioned the exclusionary definition of offender set out in s. 99(1) of the CCRA , or its equivalent in predecessor statutes. Thus, for example, s. 2 of the Parole Act, R.S.C. 1985, c. P-2, defined “inmate” (“offender” in Part II of the CCRA ) to exclude persons serving intermittent sentences. And while all four decisions did rely on s. 139(1) or its predecessors in striking down consecutive intermittent custodial sentences exceeding 90 days, this result was otherwise inevitable on a purposive and principled application of s. 732(1) of the Criminal Code .
[43] That is the approach I propose here. It is entirely compatible with the result reached in the four cases mentioned above and with the three others mentioned by my colleague at para. 76 of his reasons (R. v. Frechette, 200l MBCA 66, 154 C.C.C. (3d) 191; R. v. Squibb, 2006 NLCA 9, 253 Nfld. & P.E.I.R. 285; R. v. Robert, 2007 QCCA 515, [2007] Q.J. No. 2821 (QL)). None of these cases held that a conditional sentence is a sentence of imprisonment within the meaning of s. 732 of the Criminal Code . Moreover, nothing I have said here has the effect of overruling any of the decisions mentioned by my colleague, in the sense of declaring any one of them to have been wrongly decided. On the contrary, I believe that the court reached the correct conclusion in all seven instances.
[44] I shall presently explain why this is true of the Fletcher line of cases. By analogy, the same is true of Frechette, Squibb and Robert: chaining conditional sentences that equal or exceed two years in the aggregate effectively transforms a penitentiary sentence into a series of sentences to be served in the community. A purposive reading of s. 742.1 of the Cri