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Bail and Remand in Ontario

Addendum on Intermittent Sentences

Section 732 of The Criminal Code of Canada provides that when a court imposes a sentence of imprisonment of 90 days or less the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, and the availability of appropriate accommodation to ensure compliance with the sentence, allow that sentence to be served intermittently as such times as specified in the order. At all times when the individual is not in custody they are on terms of probation in the community.

There is no requirement as to what days the court may require such sentences to be served. However, in almost all cases, this type of sentence is ordered to be served on consecutive weekends. Hence, the colloquial name of “weekend sentences” is often used.

For the purpose of this addendum, the terms intermittent sentences or weekend sentences will be used interchangeably.

I don’t intend to comment on the public policy behind such legislation but, in practical terms, it allows the court flexibility in sentencing an offender in certain cases. Most notably, it allows someone receiving a sentence to maintain gainful employment, usually during the normal work week of Monday to Friday. There may be other reasons why such a sentence is imposed but employment is, by far, the most usual and used basis for the request. In most cases, the court recognizes that the imposition of a custodial sentence might have serious consequences to the offender that far outweigh the intended punitive response a period of incarceration is intended to carry with it.  The loss of gainful employment that may occur as a result of incarceration may have long-term devastating impact on the offender and those who may be dependent on him or her.

Statistics show that about 500 people are sentenced to intermittent sentences every year in Ontario.

Such sentences may be imposed in any case where the sentence is 90 days or less. In many cases, these types of sentences are used in impaired driving, driving over .08 or refusing the breathalyzer cases, particularly where the crown has proceeded by second offence requiring a mandatory minimum period in custody of not less than 30 days.

The impact of such sentences on correctional authorities can be significant. For one thing, the sheer numbers of inmates showing up for a weekend sentence can put considerable strain on the ability of correctional, detention or jail facilities to find room for them. These facilities are usually filled to capacity, if not over-capacity, at the best of times. Finding beds for intermittently sentenced prisoners can be very difficult. Because of the nature of their sentence it is policy, wherever possible, to keep intermittently sentenced prisoners in their own area, separate from the rest of the inmate population whether they be sentenced or on remand.

The influx of weekend inmates has resulted, in OCDC for example, in necessitating the transfer-out of other inmates in order to make room for the “weekenders”. Such transfers-out can have significantly negative effects on those so moved as it takes them away from their supports and the routine and surroundings they have become accustomed to.  It was reported to me that, in OCDC, many inmates were transferred out to other institutions just for the weekend and then transferred back once the weekend was over. Such movement is costly, risky and just plain unfair treatment of these transferred inmates. If they suffer from some sort of mental illness, such transfers back and forth can have even more serious and negative effects. These transfers have occurred, I am advised, in most other institutions across the province as well.  Further, even where transfer does not occur, the influx of weekend inmates has led, in some instances, to triple or quadruple bunking of remand and sentenced inmates. Such practice is, in my opinion, a violation of basic human rights and cruel and unusual punishment.  Finally, the impact on staff in an institution can be significant as large over-crowded populations lead to more risk, tension and the risk of violence, all of which then increases the stress and safety concerns on staff members.

Intermittently sentenced individuals bring other serious impacts to correctional facilities. It was reported that many come high on drugs or alcohol, ingesting large amounts just before admission, in order to get through as much of the weekend as possible. This creates significant challenges for authorities. As well, many inmates have been caught “packing” drugs and/or weapons into the institution. In the cases of drug importation, these drugs may be used for the inmate’s own purposes but, often, they become articles for sale to others. This clearly puts other inmates and correctional staff at risk. The same is true of weapons. Further, it has been reported that pressure is put on some weekend inmates, either directly or through family members and friends, to transport into an institution drugs or weapons or other contraband for inmates already in the institution. It was reported that the outside acquaintances, family and friends of other regular inmates often put pressure on weekenders to pack contraband for the regular inmate. Such pressure has included threats to both the weekend inmate and to his or her family. In such circumstances, some weekenders become reluctant mules for others, fearing for their safety or the safety of their loved-ones. Notwithstanding the policy to keep weekend inmates separate from others, the admission of weekend inmates (as with all admissions to an institution) heightens the risk of contraband being smuggled into the facility and finding its way into the hands of others. Where there is a will, there is a way.

Further, there is little to do for weekend inmates but to sit in a locked jail cell or area for the time of their sentence. There are no programs and there isn’t the ability to conduct meaningful programs for people there for such a short time. In other words, there is the absence of any type of rehabilitative aspect to weekend sentences such as would be the proper focus on those inmates serving their sentences on consecutive days. Rehabilitative programming is a vital part of the job correctional officials perform in our detention facilities and jails. The absence of the ability to program means that weekend sentenced prisoners miss out on the type of assistance that might normally help them to rehabilitate and then to reduce their recidivism rate and their risk of re-involvement in crime. This can seriously affect public safety. That is particularly true for those who have addiction problems that have manifested themselves in convictions for impaired driving related offences.  Further, those with mental illness are not going to get assistance on weekends and their stay in jail may very well likely make their symptoms worse. For the most part, it is safe to say that those serving weekend sentences are just warehoused.

When we put weekenders into our jails, we also expose them to the potential for contact with other serious and violent criminals. It has been said many times that jails can be training grounds for crime. In the case of weekend sentenced prisoners, we often expose people who have committed lower-level offences to those who pose much more of a risk to our citizens.

It is important to note, as well, that not all weekend-sentenced prisoners are the same. They are not necessarily convicted of the same types of offences, have the same backgrounds or present the same risks or needs and yet, because of space limitations, correctional officials are usually forced to house them in the same area and separate from regular inmates as much as possible. That could mean that people charged with a variety of offences are all in the same area together, whether they have particular mental health issues or whether they are charged with impaired driving related offences, sexual offences, drug offences, violent offences, property offences or the host of other types of offences under the Code. This also puts great pressure on correctional officials in providing the security to all inmates.

What is particularly curious is that the information I received from correction authorities is that many, many people sentenced to weekend sentences because they represented they had a job to lose, actually didn’t have employment at all. Correction officials expressed legitimate concern about the type of information given by individuals to the court to justify such a requested sentence.

All-in-all, intermittent sentences cause significant headaches for correctional officials, pose increased risk inside institutions and provide few rehabilitative benefits for those receiving such a sentence.

In response to the bed crisis that intermittently sentenced prisoners cause for inmate populations, Ontario has moved to provide additional space. Initially, a special and separate weekend sentence building was constructed at the Toronto South Detention Centre.  Subsequently, the Province announced a Regional Intermittent Centre strategy with a plan to build five more Regional Intermittent Centres (RICS) at the Elgin Middlesex Detention Centre (EMDC) in London, the Niagara Detention Centre, the Central East Correctional Complex in Lindsay, the Ottawa Carleton Detention Centre and the South West Detention Centre in Windsor.  The first one of those RICS recently opened last year at Elgin Middlesex.  Like the other four proposed structures, the Elgin Middlesex Regional Intermittent Centre (EMRIC) uses tension membrane technology that is cheaper and quicker to build than traditional structures and has the flexibility of being moveable or re-purposed. It has a life span of about 40 years.  The EMRIC houses men only and has 112 beds, including a segregation unit, and has more than 22,000 square feet of space. It is connected to EMDC by a physical walkway. The hope is that such a facility will ease the burden posed by the influx of intermittent inmates and reduce the risk of contraband.

While there are sound reasons behind the RIC plan, I see the problems with this solution as two-fold. For one thing, these structures are vacant and unused during the majority of the time. In other words, you have built something that is vacant for perhaps 5 days of the week (or 60% of the time) and yet costs money to maintain.  Secondly, even though tensioned membrane structures are cheaper to build than traditional buildings, it is still expensive to erect such structures at a cost almost 9 million dollars each to build or about $70,000 per bed.

It would be a better expenditure of money, in my opinion, to divert these funds to programming for intermittently sentenced prisoners. This would have the good public policy effect of assisting people and, by providing appropriate rehabilitative programming, reduce the risk many might otherwise pose in society.  The expenditure on “bricks and mortar” is not, in my opinion, a good way of spending scarce public funding.

I am aware that the province uses cooperative work programs to allow some weekend prisoners the chance to work in the community under the umbrella of a Temporary Absence rather than serve the time in a custodial facility. This type of initiative is beneficial and should be expanded. In other words, wherever possible and feasible and where public safety is not compromised, those serving intermittent sentences should be diverted from correctional facilities to programs in the community that will both benefit the offender and provide benefit to the community. Such programming has the added benefit of providing the offender with a measure of responsibility and accountability in relation to their offending behavior and allows them to “give back something” to the community.

The Code provides that intermittent sentences can be considered having regard to the character of the offender. While no one deserving of consideration should be automatically struck from consideration, the fact is that the higher the risk the individual poses, the less appropriate a weekend sentence might be. Yet, it appears, we allow some very high-risk people to be sentenced to intermittent sentences, some of whom may have shown a complete lack of ability or commitment to comply with previously imposed court orders or, in fact, previously imposed weekend sentences. It is important, wherever possible, to ensure those most deserving and those likely to comply with such a sentence are given this opportunity. We do not want to set people up to fail.

The Code also provides that there must be “the availability of appropriate accommodation” for intermittent prisoners. What that means is vague. The question has to be asked if that automatically means a correctional facility. I don’t believe it does and, as a result, further work needs to occur on defining what an appropriate accommodation might mean. I believe it may allow for creativity in planning for the accommodation of weekend prisoners. In fact, I believe there is great opportunity to change the way we deal with those on intermittent sentences. For example, there may be a host of buildings being used for other purposes during the week that may be available on the weekend for correctional use. Partnerships with other government agencies, both federal and provincial, and with the private sector could provide opportunities for creative problem-solving.

In this vein, it is important to note that many organizations already deal with clients of the criminal justice system. The Salvation Army, for example, currently deals with those on bail and works to supervise them and works to re-integrate sentenced prisoners into the community. It isn’t a big step to contemplate a partnership that allows us to draw on their resources and expertise to supervise intermittently sentenced inmates.

Finally, it has to be recognized that the availability of intermittent sentences is not uniform throughout Ontario. Many individuals live and work in rural and remote communities, far away from correctional facilities. There can be great hardship for those individuals, particularly indigenous people, being able to access those facilities that handle intermittent sentences. That is particularly true for those who have lost the privilege to drive a motor vehicle through a conviction. The ability to get to a correctional centre can be a significant barrier for those people, particularly where public transportation is not readily available.

The following are submitted recommendations for consideration. They should not be viewed independently since many are linked. A reviewed and renewed strategy in dealing with intermittent sentences is required and will need consideration of many of these ideas and others.

  1. Recommendation: That MCSCS immediately suspend its plan to erect and construct facilities built solely to house intermittent inmates and review its current strategy to determine if alternative solutions can be found.
  2. Recommendation: That MCSCS investigate the possibility of using alternative forms of accommodation for intermittent inmates apart from facilities designated solely for correctional purposes. Those other facilities may be ones that are used for other purposes during the week but may be available on weekends and may be with other government or private agencies.
  3. Recommendation: That funds be available to provide wide-ranging programming that is case-specific for intermittent inmates, with particular focus on addictions counselling.
  4. Recommendation: That MCSCS expand its use of the temporary absence pass program in order to divert people from custody into appropriate community supported services and that, wherever possible and feasible, the cooperative work program alternative for those sentenced to weekend sentences be expanded.
  5. Recommendation: That MCSCS investigate the possibility of creating partnerships with community organizations such as the salvation army to house and supervise intermittently sentenced individuals instead of institutionalizing them.
  6. Recommendation: That, where possible, those seeking to serve their sentence intermittently because of job commitments be required to supply the courts with independent confirmation of such employment prior to the determination on the requested sentence.
  7. Recommendation: That MCSCS conduct an in-depth study of the background and demographics of those sentenced to intermittent sentences including the nature of their offences and, where possible through the review of court transcripts, the reasons why intermittent sentences are imposed. In addition, that such study include the length of sentences received and the numbers of those who received such a sentence because of the existence of a mandatory minimum penalty.
  8. Recommendation: That MCSCS reviews its information on the number of those charged with unlawfully at large or other charges related to the failure of those to report on an intermittent sentence and, as part of this study, that the location of institution in relation to the address of the offender be included in the study.
  9. Recommendation: That corrections report out the prevalence and frequency of intermittently sentenced individuals receiving temporary absence passes to cooperative work programs and report the rates of successful completion.
  10. Recommendation: That corrections report out bi-weekly their intermittent capacity, by institution, based on individuals currently serving sentences and that such reports be provided to MAG and the judiciary as information.

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