A judge has the power to impose a sentence of imprisonment under the authority of s. 718.3 and 787:
Degrees of punishment
718.3 (1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.
Discretion respecting punishment
(2) Where an enactment prescribes a punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence, but no punishment is a minimum punishment unless it is declared to be a minimum punishment.
1995, c. 22, s. 6; 1997, c. 18, s. 141; 2002, c. 1, s. 182.
787. (1) Unless otherwise provided by law, everyone who is convicted of an offence punishable on summary conviction is liable to a fine of not more than five thousand dollars or to a term of imprisonment not exceeding six months or to both.
R.S., 1985, c. C-46, s. 787; R.S., 1985, c. 27 (1st Supp.), s. 171; 2008, c. 18, s. 44.
Under s. 743, anyone convicted of an indictable offence for which no penalty is provided is liable for a term not exceeding 5 years.
Imprisonment when no other provision
743 Every one who is convicted of an indictable offence for which no punishment is specially provided is liable to imprisonment for a term not exceeding five years.
R.S., 1985, c. C-46, s. 743; 1992, c. 11, s. 16; 1995, c. 22, s. 6.
Commencement of Sentence
Commencement of sentence
719 (1) A sentence commences when it is imposed, except where a relevant enactment otherwise provides.
Time at large excluded from term of imprisonment
(2) Any time during which a convicted person is unlawfully at large or is lawfully at large on interim release granted pursuant to any provision of this Act does not count as part of any term of imprisonment imposed on the person.
Determination of sentence
(3) In determining the sentence to be imposed on a person convicted of an offence, a court may take into account any time spent in custody by the person as a result of the offence but the court shall limit any credit for that time to a maximum of one day for each day spent in custody.
(3.1) Despite subsection (3), if the circumstances justify it, the maximum is one and one-half days for each day spent in custody unless the reason for detaining the person in custody was stated in the record under subsection 515(9.1) or the person was detained in custody under subsection 524(4) or (8).
(3.2) The court shall give reasons for any credit granted and shall cause those reasons to be stated in the record.
Record of proceedings
(3.3) The court shall cause to be stated in the record and on the warrant of committal the offence, the amount of time spent in custody, the term of imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed.
Validity not affected
(3.4) Failure to comply with subsection (3.2) or (3.3) does not affect the validity of the sentence imposed by the court.
When time begins to run
(4) Notwithstanding subsection (1), a term of imprisonment, whether imposed by a trial court or the court appealed to, commences or shall be deemed to be resumed, as the case may be, on the day on which the convicted person is arrested and taken into custody under the sentence.
When fine imposed
(5) Notwithstanding subsection (1), where the sentence that is imposed is a fine with a term of imprisonment in default of payment, no time prior to the day of execution of the warrant of committal counts as part of the term of imprisonment.
Application for leave to appeal
(6) An application for leave to appeal is an appeal for the purposes of this section.
R.S., 1985, c. C-46, s. 719; R.S., 1985, c. 27 (1st Supp.), s. 157; 1995, c. 22, s. 6; 2009, c. 29, s. 3.
A sentence is to commence once the sentence is imposed except where otherwise provided.
Anytime where the offender is either unlawfully at large or lawfully at large on release cannot count against the offender's sentence.
Where the accused resumes a sentence they begin their sentence on the day they are taken into custody.
Where a default term of imprisonment is imposed on a fine, the sentence does not begin until the execution of the warrant of committal.
- s. 719(1)
- S. 719(2)
- s. 719(4)
- s. 719(5)
Execution of Warrant of Committal
Once a person is sentenced, a warrant of committal must be executed under s. 744, which states:
Delivery of Offender to Keeper of Prison
Execution of warrant of committal
744 A peace officer or other person to whom a warrant of committal authorized by this or any other Act of Parliament is directed shall arrest the person named or described therein, if it is necessary to do so in order to take that person into custody, convey that person to the prison mentioned in the warrant and deliver that person, together with the warrant, to the keeper of the prison who shall thereupon give to the peace officer or other person who delivers the prisoner a receipt in Form 43 setting out the state and condition of the prisoner when delivered into custody.
R.S., 1985, c. C-46, s. 744; R.S., 1985, c. 27 (1st Supp.), s. 166, c. 1 (4th Supp.), s. 18(F); 1992, c. 11, s. 16; 1995, c. 22, s. 6.
Warrant of Committal
A warrant of committal can be ordered under Part XVI or s. 515 (bail provisions). The judge should use "Form 8" for warrants of committal.
Custody With Probation
Making of probation order
731 (1) Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission,
- (a) ... or
- (b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding two years, direct that the offender comply with the conditions prescribed in a probation order.
R.S., 1985, c. C-46, s. 731; 1992, c. 1, s. 58, c. 20, s. 200; 1995, c. 22, s. 6; 1997, c. 17, s. 1.
Custody With Fine
Power of court to impose fine
734 (1) Subject to subsection (2), a court that convicts a person, other than an organization, of an offence may fine the offender by making an order under section 734.1
- (a) if the punishment for the offence does not include a minimum term of imprisonment, in addition to or in lieu of any other sanction that the court is authorized to impose; or
- (b) if the punishment for the offence includes a minimum term of imprisonment, in addition to any other sanction that the court is required or authorized to impose.
R.S., 1985, c. C-46, s. 734; R.S., 1985, c. 27 (1st Supp.), s. 161; 1995, c. 22, s. 6; 1999, c. 5, s. 33; 2003, c. 21, s. 19; 2008, c. 18, s. 38.
A judge may order that an offender serve a jail sentences of 90 days or less intermittently. The judge will set the times that he is to serve the sentence as well as the conditions that are imposed while he is on release during the serving of the conditional sentence.
Section 732 states:
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.
Application to vary intermittent sentence
(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.
Court may vary intermittent sentence if subsequent offence
(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.
1995, c. 22, s. 6.
The maximum limit of 90 days refers to the duration going-forward from the time of sentencing being imposed, after taking into account remand credit.
Intermittent sentences cannot exceed 90 days. This includes consecutive sentences totalling more than 90 days.
Intermittent sentences "strike a legislative balance between the denunciatory and deterrent functions of 'real jail time' and the rehabilitative functions of preserving the offender's employment, family relationships and responsibilities, and obligations to the community."
A court has no authority to vary a sentence from an intermittent sentence to a non-intermittent sentence a once it has been ordered.
There is some suggestion that the court has some jurisdiction to vary the entry and exit time of a conditional sentence.
- R v Peebles, 2010 MBCA 47 (CanLII) at para 54
- R v Balachanoff, 2003 BCCA 433 (CanLII)
- R v Middleton, 2009 SCC 21 (CanLII),  1 SCR 674 at para 45
- R v Germaine (1980) 39 NSR (2d) 177 at para 5
R v Jules  BCJ No 1605
R v E.K., 2012 BCPC 132 (CanLII)
See Role of Trial Judge#Doctrine of Functus Officio
No Contact Orders while in Prison
Under s. 743.21, a court may order that for the duration of serving a sentence that the offender be subject to no-contact conditions.
743.21 (1) The sentencing judge may issue an order prohibiting the offender from communicating, directly or indirectly, with any victim, witness or other person identified in the order during the custodial period of the sentence, except in accordance with any conditions specified in the order that the sentencing judge considers necessary.
Failure to comply with order
(2) Every person who fails, without lawful excuse, the proof of which lies on that person, to comply with the order
- (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or
- (b) is guilty of an offence punishable on summary conviction and liable to imprisonment for a term not exceeding eighteen months.
2008, c. 18, s. 42.