R. v. Fisher

R. v. Fisher Collection Decisions of the Court of Appeal Date 2000-02-15 Docket numbers C30256 Judges Carthy, James Joseph; Charron, Louise Vivianne; Sharpe, Robert J. Subject Criminal Decision Content DATE: 20000215 DOCKET: C30256 COURT OF APPEAL FOR ONTARIO CARTHY, CHARRON and SHARPE JJ.A. BETWEEN: ) ) Roger A. Pinnock, HER MAJESTY THE QUEEN ) for the appellant ) Applicant/ ) Appellant ) ) - and - ) Constance Baran-Gerez, ) for the respondent GARY JOSEPH FISHER ) ) Respondent ) ) Heard: February 10, 2000 ) On appeal from the order of Mr. Justice Morin dated June 26, 1998 BY THE COURT: [1] The Crown seeks leave to appeal the sentence imposed on the respondent on the ground that a blended sentence of imprisonment, to be served partly in custody and partly in the community, contravenes s. 732(1) and s. 742.1 of the Criminal Code. The Crown does not otherwise dispute the fitness of the sentence. The respondent concedes that the sentence is illegal. We agree. [2] Following his trial before a judge and jury, the respondent was convicted on two counts of sexual assault. The trial judge sentenced the respondent to a conditional sentence of two years less one day on each count, to be served concurrently. The conditional sentence order was made subject to the respondent complying with a number of conditions, one of which was that the respondent spend week-ends in jail for a period of one year. [3] By this order, the trial judge purported to combine two sentencing provisions, the intermittent sentence and the conditional sentence, provided for under s. 732(1) and 742.1 of the Criminal Code respectively. These sections read as follows: 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. 742.1 Where a person is convicted of an offence, except an offence that is punishable by a minimum term of imprisonment, and the court (a) imposes a sentence of imprisonment of less than two years, and (b) is satisfied that serving the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2, the court may, for the purpose of supervising the offender's behaviour in the community, order that the offender serve the sentence in the community, subject to the offender's complying with the conditions of a conditional sentence order made under section 742.3. [4] It is clear that s. 732(1) provides for the imposition of an intermittent sentence only where the court imposes a sentence of imprisonment of “ninety days or less”. Since the sentence of imprisonment imposed by the trial judge exceeded ninety days, this option was not available. [5] The imposition of a custodial sentence as part of a conditional sentence is also contrary both to the wording of s. 742.1 and to the underlying purpose of the conditional sentence regime. [6] Section 742.1 provides that, where the two prerequisites are met, the court may order that the offender “serve the sentence in the community”. It does not provide that the offender may be ordered to serve a portion of his sentence in the community. A useful comparison may be made with the wording under s. 742.6(9) which does make that provision. Under s. 742.6(9), where the court is satisfied that the offender has breached a condition of the conditional sentence order, the court may direct “that the offender serve in custody a portion of the unexpired sentence”. Hence a conditional sentence order can only be made with respect to the total sentence. [7] This interpretation is consistent with the purpose of the conditional sentencing scheme. As stated by the Supreme Court of Canada in the recent decision of R. v. Proulx, 2000 S.C.C. 5 at para. 21 "[t]he conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders. The offenders who meet the criteria of s. 742.1 will serve a sentence under strict surveillance in the community instead of going to prison." [Emphasis added.] [8] Other Canadian appellate courts that have considered this same issue have consistently held that a blended sentence, which purported to combine a custodial order with an order that the sentence be served in the community, was illegal. See R. v. Hirtle, [1999] N.S.J. No. 165 (C.A.); R. v. Wey, [1999] A.J. No. 957 (C.A.); R. v. Monkman (1999), 132 C.C.C. (3d) 89 (Man.C.A.); R. v. Maynard, [1999] M.J. No. 8 (Man. C.A.) and R. v. Kopf, [1997] A.Q. No. 795 (C.A.). [9] Leave to appeal is therefore granted, the appeal is allowed and the sentence is varied by deleting the condition that week- ends be served in jail for a period of one year. (signed) "J. J. Carthy J.A." (signed) "Louise Charron J.A." (signed) "Robert J. Sharpe J.A." RELEASED: February 15, 2000