Intermittent sentences are about to become unavailable in Alberta. Premier Alison Redford’s government has announced Alberta intends to phase out intermittent sentences in a bid to save $942,000.
Intermittent sentences enable offenders sentenced to 90 days or less to serve their time on weekends. An offender would serve a 90-day sentence over 15 weekends if it begins on Friday evenings and ends on Monday mornings. Typically, the offender enters the jail on the day of the sentencing for processing, which counts as one day, and returns on Friday evening.
There are some interesting nuances to intermittent sentences. Clients can serve the sentence at dates arranged to accommodate their schedule if ordered by the court. So it’s possible to serve a sentence from, for example, Monday night to Friday morning if that fits the client’s work schedule.
Although the sentence can’t exceed 90 days, I have seen instances where the court sentenced the offender to 90 days on one set of charges only to have the client return for sentencing a few days after the expiry of the first intermittent sentence. However, back-to-back sentences would become one continuous sentence pursuant to s. 139(1) of the Corrections and Conditional Release Act.
Where the minimum penalty for an offence exceeds 90 days, an intermittent sentence isn’t possible. An example would be a third conviction for drinking and driving because the minimum penalty is now 120 days. However, it may be possible to persuade the court that an intermittent sentence is appropriate for the balance of the sentence if the offender has served sufficient dead time.
However, if an offender is serving an intermittent sentence and then receives a second one, the first converts to straight time pursuant to s. 732(3) of the Criminal Code unless the court orders otherwise.
The court must order probation during the intermittent sentence in order to cover the period when the offender is in the community and it can, of course, impose it for up to three years thereafter. This ensures good conduct and may specifically require offenders to present themselves sober to the institution.
Intermittent sentences serve many rehabilitative purposes. They’re not just for employment as there’s nothing in s. 732 to restrict their use in that manner. Intermittent sentences can permit offenders to continue their education or take care of their children or an elderly parent. It’s important to note that if the situation changes, offenders can apply to the court to allow them to serve their sentence on consecutive days.
The statutory criteria for imposing an intermittent sentence are as follows: the age and character of the offender, the nature of the offence, the circumstances of its commission, and the availability of appropriate accommodation to comply with the order.
That’s where the problem comes in because even if the Criminal Code provides for intermittent sentences, provinces can do away with them if they choose not to have the facilities.
An offender’s ability to keep employment, continue education or care for family is crucial to reintegration into society. And it seems harsh and punitive that the criminal law will apply differently in one province than in others.
An intermittent sentence isn’t a lenient sentence. The law provides for it. If a harsher sentence were appropriate, the client could arguably serve it on Saturdays and Sundays only, which would mean that a 90-day sentence would then take 30 weekends to fulfil.
The Criminal Code makes it clear that Parliament intended for criminal sanctions to be proportionate and recognize rehabilitation as a goal in sentencing. As the code states, “An offender shall not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances.”
New mandatory minimum penalties are already restricting judicial discretion. Taking away intermittent sentences only exacerbates the situation.
Rosalind Conway is a certified specialist in criminal litigation. She can be reached at [email protected].
