6.3 Statutory Restrictions on the Use of Conditional Sentences

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

• 1. Purpose
• 2. Impact on Prosecutions
  • 2.1. Stay, withdrawal or accepting plea to a lesser offence
  • 2.2. Obtaining prior consent not feasible
• 3. Conclusion
• Appendix A – Non-Criminal Code Offences Punishable by a Maximum Sentence of 14 Years Imprisonment
• Appendix B – Non-Criminal Code Offences Punishable by a Maximum Sentence of Life Imprisonment

1. Purpose

The purpose of this guideline is to provide direction to Crown counsel regarding the key changes to the conditional sentence regime pursuant to s. 742.1 of the Criminal Code (Code), as a result of the coming into force in 2012 of certain aspects of the Safe Streets and Communities Act (the Act). The effect of the amendments is to restrict the availability of conditional sentences. These amendments apply only to offences committed after the coming into force of the provisions, which are contained in Part 2 of the Act.

Under the new regime, conditional sentences remain unavailable if the offence is punishable by a minimum term of imprisonment,^{Footnote 1} or if the offence is a terrorism offence or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is 10 years or more.

The new s. 742.1 of the Code no longer states that conditional sentences are unavailable in relation to serious personal injury offences as defined in s. 752 of the Code. Under the new regime, conditional sentences are now unavailable in the following circumstances:

• In the case of all offences prosecuted by way of indictment for which the maximum term of imprisonment is either 14 years or life;^{Footnote 2}
• Offences prosecuted by indictment for which the maximum term of imprisonment is 10 years, that:
  1. resulted in bodily harm;
  2. involved the import, export, trafficking or production of drugs, or
  3. involved the use of a weapon.

In addition, a list of eleven offences, when prosecuted by indictment, are expressly excluded from eligibility for conditional sentences. This list includes prison breach (s. 144 of the Code), criminal harassment (s. 264 of the Code), sexual assault (s. 271 of the Code), kidnapping (s. 279 of the Code), trafficking in persons-material benefit (s. 279.02 of the Code) and abduction of person under 14 (s. 281 of the Code), but also includes a number of property offences:

• motor vehicle theft (s. 333.1 of the Code);
• theft over 5,000 (s. 334 (a) of the Code);
• breaking and entering a place other than a dwelling house (s. 348 (1)(e) of the Code);
• being unlawfully in a dwelling-house (s. 349 of the Code); and
• arson for fraudulent purpose (s. 435 of the Code).

Thus, fewer offences are eligible for conditional sentences as a result of these changes to the CSO regime, and because of related amendments to the Controlled Drugs and Substances Act (CDSA) in the Act that include an increase in the maximum penalty for marihuana production from seven to 14 years and the introduction of mandatory minimum penalties (MMP) for certain CDSA offences committed in certain circumstances in relation to Schedule I and II drugs.^{Footnote 3}

As a practical matter, as far as CDSA offences are concerned, conditional sentences will remain available for s. 4 offences. However, conditional sentences will no longer be available for any other Schedule I or Schedule II drug offence, except for s. 5 offences of trafficking or possession for the purpose of trafficking in three kilograms or less of a Schedule II drug (marihuana).

2. Impact on Prosecutions

These amendments mandate no change in the general Crown approach and rationale regarding Crown elections, plea resolution and sentencing discussions. That said, Crown counsel must follow the guidelines described below that relate to the exercise of discretion.

Regarding the Crown election, the same considerations should arise when the Crown is deciding whether to proceed summarily or by indictment. In other words, if the Crown would normally choose to proceed by indictment, due to the seriousness of the case, the criminal record of the accused or because of other relevant factors, the Crown should not elect to proceed summarily so that a conditional sentence would remain available to the accused.^{Footnote 4}

Likewise, concerning plea resolution and sentencing discussions, in keeping with the will of Parliament, it will generally be inappropriate to either agree to a plea to a lesser offence, or stay or withdraw a charge, where the evidence supports the original charge, so that the accused will remain eligible for a conditional sentence. For example, if the accused is charged with an offence that is punishable by an MMP, or that is an indictable offence punishable by 14 years or life, Crown counsel should not generally agree to a plea to a lesser offence so that a conditional sentence will be available to the accused.

2.1. Stay, withdrawal or accepting plea to a lesser offence

If Crown counsel wishes to stay or withdraw a charge, or take a plea to a lesser offence, so that a conditional sentence will remain available to the accused, the prior consent of the Chief Federal Prosecutor (CFP) or his or delegate is required. Counsel must provide the CFP with a written memorandum setting out the basis for the stay, withdrawal or plea and explaining why the proposed course of action is in the public interest. For example, there may be situations where the lack of availability of a conditional sentence would likely result in an unduly harsh consequence under the circumstances of a particular case, such as where the unavailability of a conditional sentence would result in young children being left with no caretaker. In such situations, Crown counsel might exercise discretion to reach a resolution that would permit a conditional sentence. However, if the reason for the stay, withdrawal or plea to a lesser offence, is due to the threshold for prosecution not being met (a reasonable prospect of conviction), the above-mentioned consent is not required.

2.2. Obtaining prior consent not feasible

In exceptional circumstances, where it is not feasible for Crown counsel to obtain the CFP’s consent beforehand, Crown counsel may stay, withdraw, or agree to a plea to a lesser offence, which would enable the accused to remain eligible for a conditional sentence. In such circumstances, Crown counsel must provide to the CFP, as soon as practicable after doing so, a written memorandum demonstrating how the proposed course of action was in the public interest and why it was not feasible to seek consent beforehand.^{Footnote 5} Crown counsel must also ensure that the memorandum is placed on the file.

During sentencing submissions, it will also be important for Crown counsel to remind the judiciary that the principles of sentencing for adults in the Criminal Code have not changed. Judges must continue to sentence in accordance with the sentencing principles and the jurisprudence, to the extent that the jurisprudence has established the applicable sentencing principles, sentence range, and overall sentence fitness in certain types of cases. Crown counsel can reasonably argue that Parliament has not altered the sentencing principles but merely restricted sentencing options in relation to certain kinds of offences. For example, probation will not be appropriate as a result of these amendments in situations where it was not appropriate before.

Finally, Crown counsel should never hesitate to consult senior colleagues of the Public Prosecution Service of Canada (PPSC) and their manager when engaged in resolution discussions and the preparation of sentencing submissions. Crown counsel should also remain mindful of their obligation to consult managers in appropriate circumstances as outlined in the PPSC Deskbook and in relevant guidelines.

3. Conclusion

Crown counsel continue to be bound by relevant PPSC Deskbook policies concerning Crown elections, plea resolution and sentencing discussions involving offences for which a conditional sentence will no longer be available.

It will generally be inappropriate for Crown counsel to take a plea to a lesser offence, or stay or withdraw a charge, when it is done with the intent of ensuring that a conditional sentence remains available to the accused, where the evidence supports the original charge. In exceptional circumstances deviating may be acceptable and must be done in accordance with the present guideline.

Appendix A – Non-Criminal Code Offences Punishable by a Maximum Sentence of 14 Years Imprisonment

1. Controlled Drugs and Substances Act offences

No offences punishable by a maximum sentence of 14 years imprisonment.^{Footnote 6}

2. Crimes Against Humanity and War Crimes Act

3. Immigration and Refugee Protection Act

4. Competition Act

5. Security of Information Act

Appendix B – Non-Criminal Code Offences Punishable by a Maximum Sentence of Life Imprisonment

1. Controlled Drugs and Substances Act offences

2. Crimes Against Humanity and War Crimes Act

3. Immigration and Refugee Protection Act

4. Security of Information Act