The Constitution Act, 1867 makes a distinction between penitentiaries and prisons. Section 91(28) of the Constitution Act gives the federal government exclusive authority over penitentiaries, while s. 92(6) gives the provinces authority over "reformatory prisons".
(2) The court may, with the consent of the Attorney General and the offender and after considering the interests of justice and of any victim of the offence, delay sentencing to enable the offender to attend a treatment program approved by the province under the supervision of the court, such as an addiction treatment program or a domestic violence counselling program. R.S., 1985, c. C-46, s. 720; 1995, c. 22, s. 6; 2008, c. 18, s. 35.
Courts are not to delay sentencing for purposes outside of those in s. 720(2).
R v W.B.T, 1995 CanLII 4059 (SK CA) - suggests court cannot adjourn for implementing sentencing circle recommendations
R v Nunner (1976), 30 C.C.C (2nd) 199 (Ont. C.A) - cannot adjourn for restitution
Type of Imprisonment
The duration of the sentence will determine where the sentence is served. The primary dividing line is whether the sentence is two or more years. Sentences under two years are served in a provincial or territorial jail while those of 2 years or greater are served in the federal penitentiary. This is determined by s. 743.1 which states:
Imprisonment for life or more than two years
743.1 (1) Except where otherwise provided, a person who is sentenced to imprisonment for
- (a) life,
- (b) a term of two years or more, or
- (c) two or more terms of less than two years each that are to be served one after the other and that, in the aggregate, amount to two years or more,
shall be sentenced to imprisonment in a penitentiary.
Subsequent term less than two years
(2) Where a person who is sentenced to imprisonment in a penitentiary is, before the expiration of that sentence, sentenced to imprisonment for a term of less than two years, the person shall serve that term in a penitentiary, but if the previous sentence of imprisonment in a penitentiary is set aside, that person shall serve that term in accordance with subsection (3).
Imprisonment for term less than two years
(3) A person who is sentenced to imprisonment and who is not required to be sentenced as provided in subsection (1) or (2) shall, unless a special prison is prescribed by law, be sentenced to imprisonment in a prison or other place of confinement, other than a penitentiary, within the province in which the person is convicted, in which the sentence of imprisonment may be lawfully executed.
(3.1) Despite subsection (3), an offender who is subject to long-term supervision under Part XXIV and is sentenced for another offence during the period of the supervision shall be sentenced to imprisonment in a penitentiary.
Sentence to penitentiary of person serving sentence elsewhere
(4) Where a person is sentenced to imprisonment in a penitentiary while the person is lawfully imprisoned in a place other than a penitentiary, that person shall, except where otherwise provided, be sent immediately to the penitentiary, and shall serve in the penitentiary the unexpired portion of the term of imprisonment that that person was serving when sentenced to the penitentiary as well as the term of imprisonment for which that person was sentenced to the penitentiary.
Transfer to penitentiary
(5) Where, at any time, a person who is imprisoned in a prison or place of confinement other than a penitentiary is subject to two or more terms of imprisonment, each of which is for less than two years, that are to be served one after the other, and the aggregate of the unexpired portions of those terms at that time amounts to two years or more, the person shall be transferred to a penitentiary to serve those terms, but if any one or more of such terms is set aside or reduced and the unexpired portions of the remaining term or terms on the day on which that person was transferred under this section amounted to less than two years, that person shall serve that term or terms in accordance with subsection (3).
(6) For the purposes of subsection (3), “penitentiary” does not, until a day to be fixed by order of the Governor in Council, include the facility mentioned in subsection 15(2) of the Corrections and Conditional Release Act.
1992, c. 11, s. 16; 1995, c. 19, s. 39, c. 22, s. 6; 1997, c. 17, s. 1; 2008, c. 6, s. 39.
Report by court to Correctional Service
743.2 A court that sentences or commits a person to penitentiary shall forward to the Correctional Service of Canada its reasons and recommendation relating to the sentence or committal, any relevant reports that were submitted to the court, and any other information relevant to administering the sentence or committal.
1995, c. 22, s. 6.
Sentence served according to regulations
743.3 A sentence of imprisonment shall be served in accordance with the enactments and rules that govern the institution to which the prisoner is sentenced.
1995, c. 22, s. 6.
International Transfer of Offenders Act (S.C. 2004, c. 21) was created with the repeal of Transfer of Offenders Act R.S.C., 1985, c. T-15
Purpose of temporary absence
7. The purpose of a temporary absence program is to contribute to the maintenance of a just, peaceful and safe society by facilitating, through decisions on the timing and conditions of absence, the rehabilitation of prisoners and their reintegration into the community as law-abiding citizens.
R.S., 1985, c. P-20, s. 7; 1992, c. 20, s. 207; 1995, c. 42, ss. 71(F), 72(F); 1997, c. 2, s. 2.
7.1 The principles that shall guide designated authorities in achieving the purpose of a temporary absence program are
- (a) that the least restrictive decision that is consistent with the protection of society and the prisoner’s rehabilitation and reintegration into the community be made;
- (b) that all available information that is relevant to the case be taken into account;
- (c) that prisoners be provided with relevant information, reasons for decisions and access to the review of decisions in order to ensure a fair and understandable temporary absence process; and
- (d) that the designated authority provide for the timely exchange of relevant information with other participants in the criminal justice system and make information about temporary absence programs and policies available to prisoners, victims and the public.
1997, c. 2, s. 2.
Authorization of temporary absence
7.3 (1) A designated authority may authorize a prisoner to be absent from prison with or without escort, subject to any conditions that the authority considers appropriate, where it is necessary or desirable in the authority’s opinion
- (a) for medical or humanitarian reasons;
- (b) in order to facilitate the prisoner’s rehabilitation or reintegration into the community; or
- (c) for any other purpose, consistent with the purpose and principles set out in section 7 and 7.1, that may be established by the laws of the province respecting the authorization of temporary absences of prisoners who have contravened provincial law.
(2) In authorizing a temporary absence, the designated authority must apply the criteria, if any, established by the laws of the province respecting eligibility for temporary absence of prisoners who have contravened provincial law.
1997, c. 2, s. 2.
6. (1) Subject to subsection (7.2), every prisoner serving a sentence, other than a sentence on conviction for criminal or civil contempt of court where the sentence includes a requirement that the prisoner return to that court, shall be credited with 15 days of remission of the sentence in respect of each month and with a number of days calculated on a pro rata basis in respect of each incomplete month during which the prisoner has earned that remission by obeying prison rules and conditions governing temporary absence and by actively participating in programs, other than full parole, designed to promote prisoners’ rehabilitation and reintegration as determined in accordance with any regulations made by the lieutenant governor of the province in which the prisoner is imprisoned.
Remission by Governor in Council
748.1 (1) The Governor in Council may order the remission, in whole or in part, of a fine or forfeiture imposed under an Act of Parliament, whoever the person may be to whom it is payable or however it may be recoverable.
Terms of remission
(2) An order for remission under subsection (1) may include the remission of costs incurred in the proceedings, but no costs to which a private prosecutor is entitled shall be remitted.
1995, c. 22, s. 6.
When Already Serving a Youth Sentence
Transfer of jurisdiction when person already sentenced under Youth Criminal Justice Act
743.5 (1) If a young person or an adult is or has been sentenced to a term of imprisonment for an offence while subject to a disposition made under paragraph 20(1)(k) or (k.1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, or a youth sentence imposed under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act, the remaining portion of the disposition or youth sentence shall be dealt with, for all purposes under this Act or any other Act of Parliament, as if it had been a sentence imposed under this Act.
Transfer of jurisdiction when youth sentence imposed under Youth Criminal Justice Act
(2) If a disposition is made under paragraph 20(1)(k) or (k.1) of the Young Offenders Act, chapter Y-1 of the Revised Statutes of Canada, 1985, with respect to a person or a youth sentence is imposed on a person under paragraph 42(2)(n), (o), (q) or (r) of the Youth Criminal Justice Act while the young person or adult is under sentence of imprisonment imposed under an Act of Parliament other than the Youth Criminal Justice Act, the disposition or youth sentence shall be dealt with, for all purposes under this Act or any other Act of Parliament, as if it had been a sentence imposed under this Act.
Sentences deemed to constitute one sentence — section 743.1
(3) For greater certainty, the following are deemed to constitute one sentence of imprisonment for the purposes of section 139 of the Corrections and Conditional Release Act:
- (a) for the purposes of subsection (1), the remainder of the youth sentence or disposition and the subsequent term of imprisonment; and
- (b) for the purposes of subsection (2), the term of imprisonment and the subsequent youth sentence or disposition.
1995, c. 22, ss. 6, 19, 20; 2002, c. 1, s. 184; 2008, c. 18, s. 43.
Serving Youth Sentences as Adult
Exception if young person is twenty years old or older
89 (1) When a young person is twenty years old or older at the time the youth sentence is imposed on him or her under paragraph 42(2)(n), (o), (q) or (r), the young person shall, despite section 85, be committed to a provincial correctional facility for adults to serve the youth sentence.
If serving youth sentence in a provincial correctional facility
(2) If a young person is serving a youth sentence in a provincial correctional facility for adults pursuant to subsection (1), the youth justice court may, on application of the provincial director at any time after the young person begins to serve a portion of the youth sentence in a provincial correctional facility for adults, after giving the young person, the provincial director and representatives of the provincial and federal correctional systems an opportunity to be heard, authorize the provincial director to direct that the young person serve the remainder of the youth sentence in a penitentiary if the court considers it to be in the best interests of the young person or in the public interest and if, at the time of the application, that remainder is two years or more.
Provisions to apply
(3) If a young person is serving a youth sentence in a provincial correctional facility for adults or a penitentiary under subsection (1) or (2), the Prisons and Reformatories Act and the Corrections and Conditional Release Act, and any other statute, regulation or rule applicable in respect of prisoners or offenders within the meaning of those Acts, statutes, regulations and rules, apply in respect of the young person except to the extent that they conflict with Part 6 (publication, records and information) of this Act, which Part continues to apply to the young person.