SENTENCE CALCULATION
HOW DOES IT WORK?
A Message from the Solicitor General of Canada
As Solicitor General of Canada, I recognize the need to communicate
effectively with the public, especially victims of crime, about an
important element of our Criminal Justice System: sentence calculation.
It is important that those who wish to know, can understand how the
sentence of the court will translate into time served in custody and in
the community. To aid understanding of this complex process I have
commissioned Sentence Calculation: How Does It Work?, a booklet which
answers basic questions about sentence calculation rules, including
conditional release eligibilities, that apply to offenders serving
penitentiary sentences.
Sentence calculation is an aspect of criminal law which has important
implications not only for offenders but also for judges, lawyers, court
administrators, law enforcement officers, and, last but certainly not
least, the public. All too often, people are confused by reports of how
sentences are being served, or see apparent unfairness.
Our greatest challenge in reforming sentence calculation in 1996 was to
introduce a legislative scheme that was sufficiently comprehensive to
deal equitably with all possible combinations of sentences while
respecting the intent of the sentencing Court. I believe we have achieved
this goal. At the same time, I am interested in any views you may have on
how we can do a better job.
I am pleased to recommend this booklet to you and encourage you to
contact the Correctional Service of Canada, if you require more
information about sentence calculation.
Andy Scott
Solicitor General of Canada
Introduction
Sentence calculation determines two things: the total length of the
sentence length which an offender will be required to serve; at what
point the offender will be eligible for parole and other forms of
conditional release.
The framework for sentence calculation is found in the Corrections
and Conditional Release Act (CCRA). Additional rules are also found
in the Criminal Code and the Prisons and Reformatories
Act.
This booklet explains the basic sentence calculation rules for offenders
subject to penitentiary sentences. It also highlights the recent changes
to sentence calculation introduced by Bill C-45 in 1996. It also briefly
discusses two new changes to the Criminal Code: conditional
sentences brought about through the passage of Bill C-41 in 1996 and the
Long Term Offender Designation introduced by Bill C-55 in 1997.
It should be noted that principles of sentencing and how and when various
sentences should be imposed are beyond the scope of this booklet.
More detailed information on sentence calculation is provided in
Sentence Calculation: a Handbook for Judges and Lawyers. A free
copy of the Handbook is available by contacting: Normand Payette,
Solicitor General Canada, 11F - 340 Laurier Avenue West, Ottawa, Ontario,
K1A 0P8, tel. (613) 991-2841, fax (613) 990-8295.
Should you have further questions or wish to obtain any additional
information about sentence calculation, a list of regional offices of the
Correctional Service of Canada that may be contacted is provided at the
end of this booklet.
I: What is the Difference Between Federal Penitentiaries (and
Inmates) and Provincial Prisons (and Prisoners)?
The "two-year rule" refers to the federal-provincial
jurisdictional split between sentences of two years or more and sentences
less than two years. Sentences of two years or more are served in federal
penitentiaries. Sentences of less than two years are served in provincial
prisons. The federal Prisons and Reformatories Act, certain
provisions of the Corrections and Conditional Release Act and
relevant supporting provincial legislation apply in these provincial
cases.
a) Applicable Laws
- For a Penitentiary Sentence - Two Years
or More
The Criminal Code and the Corrections and Conditional
Release Act provide authority for the administration of
penitentiary sentences of federal offenders. The Corrections and
Conditional Release Act includes provisions outlining sentence
calculation and the eligibility criteria for the various forms of
conditional release. Parole eligibilities for lifers and Dangerous
Offenders are set out in the Criminal Code.
- For a Prison Sentence - Up to Two Years
Less a Day
Three federal statutes - the Criminal Code, the
Corrections and Conditional Release Act and the Prisons
and Reformatories Act - regulate aspects of provincial
corrections and release of offenders from provincial prisons. In
addition, each province has its own legislation for the management of
its correctional operations.
(Note: Depending on the case, various sections within and among these
various Acts must be read together to determine specific dates and
time periods within a sentence.)
II: Multiple Sentences - Consecutive and Concurrent
Many offenders are serving sentences for more than one offence. It is the
combination of multiple terms where sentence calculation is most complex.
Offenders convicted of multiple offences are subject to consecutive
sentences, concurrent sentences, or a combination of both.
a) What is a consecutive sentence?
Generally, consecutive sentences are separate sentences imposed for two
or more offences that are to be served one after the other. The combined
length of the sentences is the sum of the individual sentences added
together. For example, an offender who receives sentences of 3 and 4
years to be served consecutively will serve a total sentence of 7 years.
b) What is a concurrent sentence?
Concurrent sentences are sentences imposed for separate offences which
run at the same time. A concurrent sentence begins from the date it is
imposed. Where concurrent sentences are imposed at the same time, the
total time served by the offender for all the offences is the same as the
longest individual sentence imposed. For example, when a court hands down
on the same day concurrent sentences of 3 and 5 years, the total time
served is 5 years.
Concurrent sentences include sentences with clear direction from the
Court that the sentence is to be served "concurrently" and when
no direction is given by the Court, i.e., sentence is "silent".
c) What is merger of sentences?
Where an offender who is serving a custodial sentence receives another
custodial sentence, the old and new sentences are combined and become one
sentence. The merged sentence begins from the date of imposition of the
first of the sentences to be served and ends on the date of expiration of
the last of them to be served.
The merged sentence serves as the basis for calculating the warrant
expiry date (the end of the sentence) and conditional release eligibility
dates within the sentence, including day and full parole eligibility,
temporary absences and statutory release, and warrant expiry dates.
d) Examples of an original sentence merged with a concurrent
and a consecutive sentence
- Concurrent Sentence
Suppose that an offender is subject to a 3 year sentence which began
on March 1, 1992. Two years later (March 1, 1994) he or she receives
a 3 year sentence to be served concurrently with the first. The two
sentences are combined to form a total sentence of 5 years which
begins on March 1, 1992, (the start date of the first of the
sentences to be served) and ends on February 28, 1997 (the expiration
date of the last of the sentences to be served). In this case, the
sentences run at the same time.
The offender is now serving a total merged sentence of 5
years beginning on March 1, 1992 and ending on February 28, 1997.
- Consecutive Sentence
Suppose instead in this scenario that the second 3 year sentence is
to be served consecutively to the first. Then the first and second
sentences are added to form a total sentence of 6 years which begins
on March 1, 1992, (the start date of the first of the sentences to be
served) and ends on February 28, 1998 (the expiration date of the
last of the sentences to be served). Both sentences are served
back-to-back with the second sentence having a start date of March 1,
1995 and an end date of February 28, 1998.
The offender is now serving a total merged sentence of 6 years
beginning on March 1, 1992 and ending on February 28, 1998.
III: What are the different forms of conditional release and when
can a federal offenders apply for them?
a) Work Release
Work release is a release program allowing a penitentiary inmate to work
for a specified duration in the community on a paid or voluntary basis
while under supervision. Generally, an inmate is eligible for work
release when he or she has served one-sixth of the sentence or six
months, whichever is greater. The institutional head has authority to
grant a work release of up to a maximum period of 60 days under specified
conditions which always include supervision.
Correctional authorities grant work release to carefully selected inmates
who perform work and services of benefit to the community such as
painting, general repairs and maintenance of community centers or homes
for the aged. Work release is one of the first steps in the safe gradual
reintegration of offenders into society.
b) Temporary Absence
Temporary absences include both occasional and a series of releases
intended to safely return inmates to the community on a temporary basis
for specific purposes.
Temporary absences are granted for one of the following reasons: medical,
administrative, community service, family contact, personal development
for rehabilitative purposes or compassionate reasons (such as to attend a
funeral).
- Escorted Temporary Absence (ETA)
An ETA is a short-term release to the community under escort. Most
inmates are eligible for such an absence at any time during the
sentence. The duration of an ETA varies from an unlimited period for
medical reasons to not more than 15 days for any other specified
reason. The institutional head may authorize an ETA. In certain
instances involving lifers, National Parole Board (NPB) approval is
required.
For example, ETAs are granted to allow inmates to obtain treatment
that is unavailable in penitentiary, to attend critically ill family
members and to prepare for other types of conditional release. An
inmate may be granted a ETA to meet with the staff of the community
residential centre where he or she wishes to reside and confirm
employment as part of his or her release plan.
- Unescorted Temporary Absence
(UTA).
A UTA is a short-term release to the community without an escort.
Most inmates in the penitentiary system are eligible for UTAs at
one-sixth of the sentence or six months into the sentence, whichever
is later. However, lifers and inmates with indeterminate sentences
are not eligible for UTAs until three years before their full parole
eligibility date. Any inmate classified as maximum security is not
eligible for a UTA.
A UTA can be for an unlimited period for medical reasons and for a
maximum of 60 days for specific personal development programs. UTAs
for community service or personal development can be for a maximum of
15 days, up to three times per year for a medium security inmate, or
four times per year for a minimum security inmate. The duration of
other types of UTAs ranges from a maximum of 48 hours per month for a
medium security inmate to 72 hours per month for a minimum security
inmate.
The NPB, the Commissioner of Corrections and the institutional head
have authority to grant UTAs in specified circumstances.
c) Parole
Parole is a form of conditional release which allows some offenders to
serve part of their sentence in the community, provided they abide by
certain conditions. Because most offenders will be released eventually,
the best way to protect the public is to help offenders reintegrate into
society through a gradual and supervised release.
Parole is a privilege rather than a right and NPB has discretion whether
or not to grant parole. In determining whether to grant parole, Board
members carefully review information provided by victims, the courts,
correctional authorities and the offender. In arriving at a decision, the
Board considers a number of factors, but above all the protection of
society.
There are two types of parole: day parole and full parole.
- Day Parole
Day parole is more limited than full parole in that it requires the
offender to return to the institution or halfway house each evening
unless otherwise specified by NPB.
The eligibility date for applying for day parole is also earlier than
for full parole. Most federal inmates can apply for day parole at
either six months into the sentence or six months before full parole
eligibility, whichever is later. Day parole is normally granted up to
a maximum of six months. Lifers (for first and second degree murder)
and inmates serving indeterminate sentences are eligible three years
prior to the full parole eligibility date.
Day parole provides inmates with the opportunity to participate in
community-based activities to prepare for full parole or statutory
release.
- Full Parole
Full parole is a conditional release which allows an offender to
serve the remainder of a sentence in the community. It is the
culmination of an offender's gradual, structured and controlled
release program. Under this form of release, an offender may live
with his or her family and continue to work and contribute to
society. Although no longer required to return to the institution,
the offender remains under supervision and must continue to abide by
certain conditions.
Generally, an inmate serving a definite sentence is eligible for full
parole at one-third of the sentence or seven years, whichever is
less.
d) Accelerated Parole Review
"Accelerated review" provides a streamlined process of review
of the cases of first-time penitentiary offenders for day parole and full
parole. This means that the National Parole Board will direct release
under day parole at 6 months or one-sixth of the sentence, whichever is
longer, and full parole at one-third of the sentence. This is only done
when, after careful review of a case, the NPB is not convinced that an
offender will commit a violent offence listed in Schedule I of the
Corrections and Conditional Release Act before the expiry of his
or her sentence.
It is important to note that not all first-time offenders are eligible
for accelerated review. The National Parole Board will exclude from its
review offenders serving a sentence for murder or for being an accessory
after the fact to murder, other life sentences, a Schedule I (personal
injury) offence, an offence for attempting to commit a Schedule I
offence, or a Schedule II (serious drug) offence where an order has been
made for parole eligibility at one-half of the sentence. Moreover, any
offender whose day parole has been revoked is also not eligible for
accelerated review.
e) Statutory Release
As a general rule, an inmate is legally entitled to be released into the
community at two-thirds of the sentence. Similar to parole, offenders on
statutory release serve the remaining third of their sentence in the
community under supervision, provided they abide by certain conditions.
However, not all inmates are entitled to statutory release. Those who are
excluded from this form of release are lifers, inmates serving
indeterminate sentences, inmates detained to warrant expiry by NPB
following a detention hearing, and inmates for whom NPB has imposed
one-chance statutory release or lifted their detention orders and their
statutory release has been subsequently revoked.
f ) Detention
Upon a referral by the Correctional Service of Canada, the National
Parole Board reviews for detention the case of any offender serving a
sentence of two years or more that was imposed for an offence listed in
Schedule I (personal injury) or II (serious drug) of the Corrections
and Conditional Release Act. Moreover, the Board reviews for
detention the case of any offender about whom the Commissioner of
Corrections believes that the offender will (before the end of sentence)
commit an offence that causes death or serious harm, a sexual offence
involving a child, or a serious drug offence.
If satisfied that if the offender is released in the community, he or she
is likely to commit before end of sentence an offence that causes death
or serious harm, a sexual offence involving a child or a serious drug
offence, the Board may order the offender detained until the expiry of
the sentence.
If the Board is not satisfied as above, but is satisfied that at the time
of the review the offender was serving a scheduled offence and that, in
the case of a Schedule I offence, it caused death or serious harm or was
a sexual offence involving a child, the Board may order that the offender
be released on "one-chance" statutory release. This means that
should the offender's release be revoked the offender will not be
entitled to statutory release for the rest of the sentence.
If the Board is not satisfied the offender warrants detention or
"one-chance" statutory release, the offender is released on
statutory release. However, the Board may require, as a condition of the
statutory release that the offender reside in a designated facility such
as a community correctional centre.
The Board reviews the cases of detained offenders annually. At that
review, the Board may confirm their previous order to detain the offender
or the Board may cancel the order and allow the offender to be released
on statutory release with or without a condition to reside in a community
based facility. This release could also be made subject to the "one
- chance" rule.
g) Long Term Offender Designation
Bill C-55 which came into force in August 1997 added a new sentencing
category to the Criminal Code called Long Term Offender. The
procedure is similar to the Dangerous Offender process. The procedure
applies to offenders convicted of sexual assault, sexual interference,
invitation to sexual touching, sexual exploitation, exposure, aggravated
sexual assault and sexual assault with a weapon or causing bodily harm.
The procedure is also applicable to an offender who committed another
offence with a sexual component: for example, break and enter with the
intent of sexually assaulting the occupant.
An offender designated as a Long Term Offender at a special sentencing
hearing will be sentenced to a penitentiary sentence and a period of long
term supervision of up to a maximum of ten years which starts when the
period of incarceration, including parole, expires. A court can impose
long term supervision where in its judgement the risk presented by the
offender can be managed in the community through appropriate supervision.
Every Long Term Offender is subject to standard conditions such as
keeping the peace. Specialized conditions can be added to ensure close
supervision of the offenders such as electronic monitoring and mandatory
participation in counselling. The Correctional Service of Canada provides
the supervision.
IV: Overview Of Eligibility Dates
The following graph presents the points in the definite sentence where an
offender would normally be eligible for conditional release and subject
to long term supervision:
V: How is parole eligibility determined when an offender is
subject to a single and then multiple sentences?
a) Single Sentence
The parole eligibility date (PED) is normally one-third of a definite
sentence or 7 years, whichever is less. For example, an offender serving
a 3 year sentence would be eligible for parole 1 year after the date of
imposition of the sentence.
b) Multiple Sentence
Where multiple sentences merge, eligibility dates are determined
(re-calculated) on the basis of the new single sentence.
However, Bill C-45 introduced two important rules regarding the
imposition of additional sentences. First, an offender who receives a new
consecutive sentence will have that sentence merged with the current
sentence. Before becoming eligible for parole, the offender must serve,
from the date of imposition of the new sentence, the remaining parole
ineligibility period on the existing sentence plus a
period equal to the parole ineligibility period of the new sentence.
Second, although under Canadian law, any sentences imposed in addition to
a life or indeterminate sentence must be concurrent rather than
consecutive, the principle of adding parole ineligibility periods now
also applies where a lifer receives an additional definite sentence. This
ensures that receipt of a new sentence has a direct impact on the
offender's parole ineligibility period. However, the parole ineligibility
periods may only be added to a maximum of 15 years from the date of the
last sentence imposed.
Detailed information and illustrations of the various combinations of
consecutive and concurrent sentences and their impact on parole
eligibility are provided in Sentence Calculation: a Handbook for
Judges and Lawyers.
c) What is automatic revocation?
An offender on parole or statutory release who receives a new custodial
sentence for an offence against a federal statute will automatically have
his release revoked and will be returned to custody. The offender's new
parole eligibility date will depend on the nature of the new sentence,
including whether it is consecutive or concurrent.
d) Are there Exceptions to Automatic
Revocation?
There is one exception to automatic revocation. Where an offender on
parole or statutory release receives an additional
concurrent sentence for an offence committed before the
current sentence, the National Parole Board has discretion whether or not
to revoke or terminate the conditional release.
Where the Board does not revoke or terminate an offender's current
parole, but the offender's re-calculated parole eligibility date is set
in the future, the parole becomes inoperative and the offender will be
returned to custody. For example, this would occur where an offender
released on parole at the start of the second year of a 3 year sentence
receives a additional concurrent sentence of 8 years. The two sentences
would be combined to form a total sentence of 9 years. Parole eligibility
would be at one-third or 3 years from the date of imposition of the first
sentence, but the offender is only at the beginning of year two (12
months into his or her sentence). Thus, the parole eligibility date would
be placed 2 years in the future. The offender would have to re-apply for
parole at the new eligibility date.
Suppose instead in this scenario that the offender was on statutory
release at the beginning of the third year when an additional concurrent
sentence of 4 years was imposed. The two sentences would be combined to
form a total sentence of 6 years. The offender's statutory release date
would be placed 2 years in the future and he or she would be returned to
custody. The statutory release would become inoperative for 2 years and
would recommence after that period, unless the National Parole Board
revoked or terminated the statutory release before that time.
e) When can a judge set parole eligibility at one-half of the
sentence for offences?
Where an offender is sentenced to two years or more for a personal injury
or serious drug offence listed in Schedules I and II of the
Corrections and Conditional Release Act or for a criminal
organization offence, and prosecuted by indictment, the Court may order
that the offender serve one-half of the sentence or 10 years, whichever
is less, before being eligible for parole.
f ) What is the effect of revocation on parole eligibility or
entitlement to statutory release when no new sentence has been
imposed?
On revocation of parole or statutory release, the offender is recommitted
to custody. If the offender was on parole and no new sentence has been
imposed, the offender's parole eligibility date remains unchanged.
However, the offender must re-apply for parole, and his or her previous
failure will be given careful consideration. If the offender was on
statutory release, the offender is not again entitled to statutory
release until after serving two thirds of the remaining portion of the
sentence. The offender whose parole has been revoked wishing to be
released on statutory release again must also serve two thirds of the
remaining sentence before becoming entitled.
VI: What is a conditional sentence?
The conditional sentence was introduced in September 1996 with the
passage of Bill C-41. Under this new scheme, the court may order that an
offender serve his or her sentence in the community where it imposes a
term of imprisonment of less than two years (but not a minimum sentence
imposed for offences such as drunk driving) and is satisfied that the
safety of the community would not be endangered. In addition to
compulsory conditions set out in the Criminal Code, the court
may impose conditions that it considers necessary to secure the good
conduct of the offender.
In the event of a breach of a condition, the court can terminate the
conditional sentence order and direct the offender to serve the balance
of the sentence in custody. Provincial correctional authorities provide
the supervision.
VII: Contacts for obtaining further information
For further information, please contact sentence administration staff at
the following Correctional Service of Canada (CSC) locations.
National Headquarters and Pacific Region
Rick Hewton
Sir Wilfrid Laurier Building
340 Laurier Avenue West
Ottawa, Ontario K1A 0P9
Phone: (613) 996-7279
Regional Headquarters
Prairie Region
Garth Sigfusson
2313 Hanselman Place
P.O. Box 9223
Saskatoon, Saskatchewan S7K 3X5
Phone: (306) 975-4857
Atlantic Region
Jean Smith
Government of Canada Bldg.
2nd Floor
1045 Main Street
Moncton, New Brunswick E1C 1H1
Phone: (506) 851-6397
Ontario Region
Leslie Milbury
P.O. Box 1174
440 King Street West
Kingston, Ontario K7L 4Y8
Phone: (613) 545-8308
Québec Region
Bernard VanHoutte
246, Montée Gagnon
Sainte-Anne-des-Plaines, Québec J0N 1H0
Phone: (514) 478-5977 (ext. 7605)
Cat. No. : JS42-81/1998
ISBN : 0-662-63522-1
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