A precedent-setting ruling could pave the way for more Manitoba criminals to receive intermittent jail sentences served only on weekends.
The Manitoba Court of Appeal's decision centres around the case of a Winnipeg man who pleaded guilty last year to two counts of forcibly entry, mischief, possession of a dangerous weapon and theft. Scott Peebles was given a 70-day intermittent jail sentence in addition to receiving credit for 50 days of time already served following his arrest.
The Crown immediately filed an appeal, claiming the judge had issued an "illegal sentence." The Criminal Code says intermittent sentences can only be given out when the penalty is 90 days or less. Prosecutors claimed the 120-day total sentence given to Peebles made him ineligible.
"The Crown's argument, at first blush, seems persuasive," Justice Barbara Hamilton wrote in the decision. However, the province's highest court ultimately disagreed, saying judges only have to concern themselves with the sentence "going forward" and do not have to factor in pre-trial custody when deciding whether an offender qualifies for an intermittent penalty.
The key issue centres around when an actual sentence truly begins, and there are conflicting rulings in law.
The Crown relied on a 2005 Supreme Court case that stated a person can only be given a conditional sentence if the judge deems the "total punishment," which includes pre-trial custody, is worth less than two years.
Peebles' lawyer relied on a 2008 Supreme Court ruling, this time revolving around the issue of probation. The country's highest court said an offender can be put on probation as long as they receive a sentence not exceeding two years of "new" jail time, regardless of how much credit they are given for pre-trial custody.
The Peebles case represents a previously unexplored area in law, as there are no other Canadian cases where the issue of intermittent sentences has been addressed. The Manitoba Court of Appeal said the 2008 Supreme Court ruling seems to be the official guide judges must now follow and is "dispositive" of the Crown's position.
"A sentence commences when it is imposed," Hamilton said. "An intermittent sentence has been a sentencing option since long before conditional sentences. As the jurisprudence amply demonstrates, it is a useful and worthwhile part of the judicial arsenal."
Hamilton said there are "numerous" examples in Manitoba and other provinces of intermittent sentences being imposed in Canada where credit for pre-trial custody brought the total penalty beyond the 90-day maximum. None of those cases were ever appealed by justice officials.
Peebles was given an intermittent sentence to allow him to keep working full-time during the week, then report on consecutive weekends to serve his time. The judge cited several factors, including a drug addiction that contributed to his crimes. His offences involved smashing his way into an apartment building, apparently to help a friend he believed had overdosed, and stealing DVDs from a Winnipeg electronics store and confronting security staff with a "pen-like object with a blade."
I completely agree with intermittent sentences for those who need some form of incarceration, for possibly breaching conditions of probation, but who are not extremely dangerous or pose a threat to the community or for those convicted of minor, property or drug offences. These people do not need to be in secure custody, but may need some form of open custody which is appropriate.
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