1. ................... 11 th Annual Crown Defence Conference October 16 th, 2013 Presenter: Sean Boyd, Counsel for Manitoba Corrections Presenter: Karen Shaffer, Correctional Services of Canada Presenter: Carla Merry, Manitoba Corrections

2. 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)

3. FEDERALPROVINCIAL  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

4.  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

5. T he 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.

6.  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

7.  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

8.  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”

9.  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

10.  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

11.  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?

12.  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?

13.  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

14.  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

15.  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

16.  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

17.  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.

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

19.  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

20.  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)

21.  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

22.  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

23.  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

24.  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

25.  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

26.  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

27.  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)

28.  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

29.  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

30.  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))

31.  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

32.  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

33.  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

34.  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.

35. 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

36.  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

37.  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

38.  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

39.  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

40.  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

41. 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

42. Start Date: October 16, 2013Oct. 16/13 + 30 Days+ 1 Month = November 14/13 (expiry date) = November 15/13 (expiry date) 20 days custody21 days custody Release date: Nov. 4/13Release Date: Nov. 5/13 Oct. 16/13 to Nov. 15/13 = 31 Days