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CORRECTIONSProvincial & Federal

Sentence Calculation Overview

11th Annual Crown Defence ConferenceOctober 16th, 2013

• Presenter: Sean Boyd, Counsel for Manitoba Corrections• Presenter: Karen Shaffer, Correctional Services of Canada

• Presenter: Carla Merry, Manitoba Corrections

The Role and Mandate of Provincial and Federal Corrections officials in “calculating”

sentences

Federal Authority – Corrections and Conditional Release Act (Canada)

Provincial Authority – Prisons and Reformatories Act (Canada) and The Correctional Services Act (Manitoba)

Introduction

FEDERAL VS. PROVINCIAL

FEDERAL PROVINCIAL

Sentence: 2 Years or More Done at Warrant Expiry Date

(WED) (full sentence) SRD to WED – supervision;

◦ If incurs new charges after statutory release date (SRD) remanded in custody

SMI Sentence Administrators: federal calculations for MB & NW Ontario for Men, Women and Youth

Sentence: 2 Years -1 Day or Less Inmates earn REMISSION: 15

days for every 30 Intates can lose remission Done at Early Release Date

(ERD) (2/3 of sentence) ERD to WED – no supervision;

sentence is finished◦ If incurs new charges after

release on ERD, it is treated as new charges

Jails – where offender is residing, Sentence Administrators will complete calculation

S. 139 of the Corrections and Conditional Release Act

Essentially says that if you have a sentence, and you get another sentence, the two sentences are treated like one sentence beginning at the start of the first and going to the end of the one that ends last

Interpreting this section has caused some troubles

s. 139

The Supreme Court of Canada’s decision in R. v. Knott has cleared up years of confusion about “invalid probation orders”, a discussion of how Corrections interprets the provisions governing the commencement of probation orders.

Commencement of Probation Orders

Formerly there was caselaw holding that if multiple sentences combined to form a total sentence of more than 2 years, any probation orders attached to those sentences were invalidated

This was as a result of an interpretation of s. 139 of the Corrections and Conditional Release Act

s. 139 again...

The Supreme Court found that Parliament intended that it was the length of sentence being imposed that was important not the total combined length

S. 139 is really just a tool for sentence calculation

Now it is legitimate for a court to impose a probation order even if the person is serving an existing sentence

Section 742.6 of the Criminal Code provides a complete and self contained code for dealing with CSO breaches

Corrections policies on calculating CSO dispositions, CSO Stoppage and “time served”

Conditional Sentence Orders

CSO – sentence served out of custody

Up to 2 years less a day long

Remission does not apply to a CSO (mostly)

Once a breach allegation is issued the CSO stops running

So if an offender goes AWOL and a breach is laid, they stop working off their sentence

This stoppage makes sense because the only possible punitive implications of a breach charge is serving all or part of the remaining duration of the CSO in custody

(Unlike a charge for breach of probation which can result in a new sentence)

So if the CSO kept running it might well expire before the offender is held to account

When a person is arrested their CSO does not automatically start again

The CSO only starts on the making of an order under section 515 of the Code to detain the person in custody (s. 742.6(12))

What does this mean?

Does it mean that the offender can sit in jail until he or she has a contested bail hearing

If so, that means they are sitting in jail for a period of time and the CSO is not running – its “dead time”

What if they never apply for bail because they know they won’t be released?

Dead time…

This is truly dead time because when a judge ultimately disposes of the breach charge, the judge’s options are ‘go forward’ options – a decision as to whether the person should serve part or all of the remaining CSO in custody

there is a very limited ability to give credit for time that the CSO was stopped that would not normally apply to a simple period of time between arrest and a formal bail hearing

Dead time…

The Ontario Court of Appeal considered what section 742.6(12) means in R. v. Atkinson – does it really mean that the CSO is stopped until a formal show cause hearing?

The Court concluded that Parliament meant that the CSO would resume upon any judicial order to detain the person in custody – that is, the CSO resumes as soon as a remand warrant issues – usually within a day of arrest

Case law…

Based on R. v. Atkinson, Corrections’ policy is to calculate CSO’s using a ‘re-start’ date based on the initial remand warrant

As a result, an offender typically only has a day of ‘dead’ time when arrested for a breach

Corrections’ policy

A person charged with a breach can get out on bail pending the determination of the breach (there is a reverse onus)

However, the CSO does not run during the time to person is out on bail, but the condition of the CSO continue to apply

Bail…

So when a person is in custody, they are serving their CSO – normally this would mean they are earning remission

However, the Code specifically provides that a person in this situation does not earn remission.

No remission…

So the person is only getting 1:1 credit towards the sentence, not the usual 1.5:1 that remission provides

Breach proven

However, if the breach is stayed or not proven, the Code provides for an additional credit of a ½ day for every day in custody leading up to the breach

This mirrors remission and it actually reduces the length of the sentence

Breach not proven…

If the breach is proven no extra credit is given

As a result, once a breach is proven, even if the court imposes no additional consequences, the offender will effectively be penalized

(If they were ‘not guilty’ their sentence would be shorter as a result of the extra 0.5 credit)

When a breach is found the court has four options under section 742.6(8):

Take no action

Change the conditions of the CSO

Order a portion of the CSO be served in custody

Terminate the CSO

3 possible disposition of breach

As discussed above, the offender is (often) effectively penalized even if no action is taken

If the breach had not been proven, the offender would get 1.5:1 credit rather than 1:1

Taking no action

The court may order a portion of the time left in the CSO be served in custody

Remission DOES apply to this time in custody

For example if there are 90 days left in the CSO and the court orders 30 to be served in custody, the person will normally only serve 20 and be released back onto the CSO

Part of remainder served in custody

The reason remission applies is that nothing in the Code says that remission does not apply, and the Prisons and Reformatories Act says that remission applies to all persons in custody under a sentences (less than 2 years)

Corrections’ also treats remission as not only entitling the person to be released early, but also reducing the length of the sentence

This is somewhat controversial – but is in keeping with practice in other provinces

Normally remission does not reduce the length of a sentence, it just entitled a person to be released early – the sentence still exists until the time ordered by the court is up

However, federal sentencing guidelines

indicate that the actual length of the sentence is reduced

This means that if a person is imprisoned as a result of a breach disposition,they let out after 2/3, and when they are released, the remainder of the CSO they must serve in the community is shorter

Perhaps this issue will be explored on an appeal sometime, though the short time frames involved perhaps make that unlikely

When the court ends the CSO and orders the remainder to be spent in custody, the remaining time on the sentence is treated like a regular custodial sentence

Remission applies – so if there are 90 days left in the sentence, the person will normally be released after 60 (unless they lose remission for behavior issues)

Terminating the CSO

One thing that cannot be done by a court considering a CSO breach, is extend the length of the CSO – regardless of the seriousness of the breach or how little time is remaining on the CSO

No extension of CSO

I alluded earlier to the limited scope for the court to order credit for time pre-disposition

The court is given three disposition options

These do not include any ability to give the person credit – the court can take no action, order a portion of the remaining CSO be served in custody, or terminate the CSO

Credit for Time

There are two circumstances only where the court can order credit – and the credit ordered can only be for time that the CSO was stopped

Time where the CSO was stopped during an unreasonable delay in execution of the warrant (s. 742.6(14))

Time where the CSO was stopped where there are

exceptional circumstances (s. 742.6(16))

In neither case can the court give extra time or credit for time the person spends in custody where their CSO is running….

Time spend in custody can be noted as being a sufficient consequence for the breach, but it cannot be credited to the sentence

This makes sense because the provisions discussed earlier specifically deal with the implications of the time spent in custody

We often see disposition specifying certain amounts of time to be credited – sometimes it equates to the amount of time in predisposition custody, sometimes it does not

Our message on this point, is that from Corrections’ perspective we don’t need to see any information about the time the person has served in custody the Code tells sentence calculators what to do with this time – it can actually be confusing

Often we are in a situation where we don’t know if the court is just noting time or wanting to give credit for time the sentence was stopped due to an unexecuted warrant or exceptional circumstances

The other related message is that Corrections does follow R. v. Atkinson so you can be assured that once an offender is remanded into custody on a breach, they are getting credit towards their CSO.

A sentence of imprisonment, even if only one day, can have implications for sentence calculation and the status of other sentences the offender is serving

A Sentence of “Time Served” vs. a Sentence of “One Day” in Court

A sentence of one day in court can have implications on ongoing prior sentences

A one day sentence will also cause an intermittent sentence to be converted to straight-time, something which the offender may not anticipate

If a person is serving a youth sentence, a custodial sentence (whether one day or 3 years or otherwise) has the effect of converting the youth sentence to an adult sentence.

When a youth sentence is converted to an adult sentence, the time remaining in the youth sentence is treated as if it was an adult sentence

Conversion of Youth Sentence to Adult Sentences

For example, consider a young person is two years into a 4 year custody 3 year community supervision youth sentence

An adult sentence, whether one day or 10 days or a year, will convert the remaining 5 years into a 5 year adult sentence

The young person will automatically be moved to an adult facility (in this case a penitentiary)

The community supervision portion of the sentence (which may have been carefully crafted by the sentencing court) will simply disappear

The young person will earn remission (for converted sentences of less than 2 years) or will be eligible for parole/release (for sentence of 2 years or more - penitentiary sentences)

If the young person is already serving the community portion of the youth sentence the remaining portion will be converted to an adult custody sentence as well and the person may find themselves back in jail

As much as possible sentences are calculated precisely as expressed by the court. Differences in the length of months, the existence of leap years etc. can have implications for how long a person is in custody and can sometimes make the difference between incarceration in a provincial or federal facility

A Sentence of 30 Days is Not Necessarily the Same as a Sentence of One Month

Start Date: October 16, 2013

Oct. 16/13 Oct. 16/13+ 30 Days + 1 Month= November 14/13 (expiry date) = November 15/13 (expiry date)

20 days custody 21 days custody

Release date: Nov. 4/13 Release Date: Nov. 5/13

Oct. 16/13 to Nov. 15/13 = 31 Days

30 Days vs. 1 Month Sentence

Questions? Discussion?