R. v. Middleton – Never Again Must We Fear The Co-Mingling Of Intermittent and Conditional Sentencing!

Although the subject matter of sentencing is usually considered a dry one to discuss, the Supreme Court’s recent decision in R. v. Middleton, 2009 SCC 21, is worth addressing briefly here at The Court.

The issue in Middleton was that of whether an intermittent sentence and a conditional sentence can co-exist. Intermittent sentences are brief sentences of imprisonment (not exceeding ninety days, under s. 732(1) of the Criminal Code) where the term of the sentence need not be served entirely consecutively – i.e., every day of the sentence all in a row. It is usually reserved for minor offenses where a justice wishes to impress upon an offender the seriousness of a given offence, but does not wish to greatly disrupt the offender’s life for whatever reason (familial obligations, to name one of the more regular explanations).

By contrast, conditional sentences are sentences where punishment (or the lack thereof) is conditional on certain actions and behaviours undertaken by the offender as ordered by the justice. For example, attendance at rehabilitory functions/meetings, such as drug counselling or psychological therapy, is one of the more common conditions imposed by a justice in order for the offender to avoid imprisonment. Should they not abide by those conditions, their sentence will then revert to imprisonment.

In Middleton, the offender was assigned both a ninety-day intermittent sentence and two eighteen-month conitional sentences, as a result of being found guilty of assault causing bodily harm (the intermittent sentence) as well as having uttered a death threat and for pointing a firearm at a person (the two conditional sentences). The justice wanted to punish the offender, who had assaulted his wife, but did not want that punishment to interfere with his ability to pay child support for his daughter.

However, s.139 of the Corrections and Conditional Release Act stipulates that an intermittent sentence be merged with a lengthier sentence where one exists. Since this would result in an 18-month intermittent sentence, the intermittent sentence would thus become illegal for violating the 90-day maximum.

The SCC resolved this rather neatly. Justice Fish, in the majority decision, argues that s.732(1) of the Code demands that intermittent sentences be sentences of imprisonment. Conditional sentences, however, are by their nature not meant to be served in a prison – they exist to allow offenders the chance to serve a sentence of punishment in the community. Since they are not sentences of imprisonment, they cannot be merged with an intermittent sentence of imprisonment and the potential illegality of the sentence is thus moot.

In a dissent, Justice Cromwell disagrees with his colleagues’ reasoning, arguing that there needs to be a “distinction between the nature of the sentence and the manner in which it is to be served,” and cited numerous other provisions in the Code which suggest that the words “sentence of imprisonment” refer to incarceration regardless of conditionality, and that therefore, by the wording of s.139 of the CCRA, the sentence was an illegal one. However, Justice Cromwell declined to offer up an alternative sentence given his colleagues’ agreement against his position.