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.
Commencement of Sentence
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.
Once a person is sentenced, a warrant of committal must be executed under s. 744.
- s. 719(1)
- S. 719(2)
- s. 719(4)
- s. 719(5)
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)
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.