The probation orders imposed on the appellants were valid when made and no prior or subsequent sentences invalidated them, either prospectively or retrospectively. The phrase “imprisonment for a term not exceeding two years” relates only to the actual term of imprisonment imposed by a sentencing court at a single sitting. It does not refer to the aggregate of the custodial term imposed by the sentencing court and all other sentences then being served or later imposed on the offender. Nor must a probation order come into force within two years of being made. Probation orders, however, may not be attached to a sentence that does not exceed two years’ imprisonment if that sentence results in continuous custody for more than two years when combined with other sentences imposed at the same sentencing session. Probation orders of this sort contravene s. 731(1)(b) of the Criminal Code.
Trial judges must retain as much flexibility as the Criminal Code permits in crafting individualized sentences that respect the principles and purposes of sentencing set out by Parliament in the Code.
Probation orders are intended to facilitate rehabilitation. An interpretation of the phrase “imprisonment for a term not exceeding two years” that includes all outstanding sentences would have the undesirable consequence of making probation orders unavailable to offenders who might well benefit from them. The sentencing objectives in the Criminal Code are best achieved by preserving non‑custodial sentencing options. Not infrequently, the offender and society will both benefit from a probation order that comes into force following imprisonment for an aggregate period of more than two years.
In assessing the appropriateness of a fresh probation order, however, unexpired prior sentences remain an important consideration. Sentencing courts cannot disregard existing probation orders. A sentence must take into account the particular circumstances of the offence, the character and needs of the offender, and the purpose and relevant principles of sentencing. A probation order that is manifestly inappropriate in itself or that renders a sentence unfit will be set aside on appeal. As well, a probation order that was appropriate when made may be rendered inappropriate by a lengthy intervening term of imprisonment.
Source: R. v. Knott, 2012 SCC 4
