When a judge sentences an offender to jail in Canada, the offender is immediately taken into custody to begin serving his sentence. The offender will then remain in custody until he is eligible for release.

There is one exception:  The intermittent sentence of imprisonment (Criminal Code of Canada s. 732).

If the period of jail is ninety days or less, a judge may allow the offender to serve the sentence on a piece-meal basis beginning on a later date.

The specific reporting times of an intermittent sentence are tailored at the sentencing hearing to promote the offender's rehabilitation. As stated Justice Fish, speaking for the majority of the Supreme Court of Canada in R. v. Middleton, [2009] S.C.J. No. 21, at para. 45:

…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 (emphasis added).

An intermittent sentence is most commonly served on weekends (Friday at 8 p.m. to Monday at 6 a.m. ) and the offender is subject to a probation order when not in custody. That being said, "...the needs of the offender dictates the patterns of intermittency" (R. v. T.W. , 2016 ONCJ 409 at para. 29).

One current difficulty with the intermittent sentencing option is that the Criminal Code does not authorize a provincial court judge to vary the times of an intermittent sentence, apart from collapsing the sentence so that the remainder is served on a straight-time basis (Criminal Code s. 732(2)).

The result is that a provincial court judge is unable to accommodate any changes that may arise in an offender’s circumstances, such as a change in a schedule of employment or education.

The absence of a statutory mechanism for varying the reporting times is a statutory gap that needs to be filled having regard to the rehabilitative purpose of this sentencing option. 

Useful references:

  •  R. v. Germaine, [1980] N.S.J. No. 408 (C.A.) and more recently, R. v. Denny, [2014] N.S.J. No. 435.

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