INTRODUCTION AND BRIEF DESCRIPTION
Section 104(2) states the penalties for committing an offence under subsection (1), which can lead to imprisonment for up to five years or summary conviction.
SECTION WORDING
104(2) Every person who commits an offence under subsection (1) (a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years; or (b) is guilty of an offence punishable on summary conviction.
EXPLANATION
Section 104(2) of the Criminal Code of Canada pertains to the offence of unlawfully wearing a uniform or distinctive badge of a police officer or a member of the Canadian Armed Forces. The section divides the offence into two categories: an indictable offence and an offence punishable on summary conviction. An indictable offence is a serious criminal offence that carries a maximum penalty of imprisonment for more than six months. Therefore, a person who is found guilty of committing the said offence under subsection (1) is liable to serve a maximum sentence of five years. This implies that such an offence is grave and requires a trial by judge and jury in a higher court. On the other hand, offenses punishable on summary conviction are considered less severe criminal offences that carry a maximum penalty of imprisonment for not more than six months. Therefore, a person who is found guilty of committing the said offence under subsection (1) may be liable to serve a term of imprisonment not exceeding six months or a fine or both. These types of offences are usually tried in a lower court and do not require a jury. The section highlights the seriousness of impersonating police officers or members of the Canadian Armed Forces by imposing hefty penalties. The section aims to deter people from committing such crimes that may lead to significant harm to the community and undermine the credibility of the institutions of law enforcement and national security.
COMMENTARY
Section 104(2) of the Criminal Code of Canada deals with the offence of unlawfully entering a dwelling house. Essentially, this section makes it a criminal offence for a person to enter someone else's home without their consent or without lawful authority. The penalty for this offence varies depending on the seriousness of the offence. If a person is found guilty of this offence, they may be punished as either an indictable offence or a summary conviction offence. If found guilty of an indictable offence, the punishment is imprisonment for a term not exceeding five years. On the other hand, if the offence is punishable on summary conviction, the punishment may be a fine, imprisonment for a term not exceeding six months, or both. The essence of this offence is to protect the sanctity of people's homes. In many cultures, the home is considered the most sacred place, and the law recognizes this. The fact that a person's home is their private space means that they should be free to enjoy their privacy without fear of intrusion. Thus, anyone who enters someone else's home without their consent must face the consequences of their actions. The lawful authority" requirement in this section means that there may be situations where someone has a legal right to enter someone else's home. For instance, police officers can enter someone's home with a warrant or in certain emergency situations. This section does not criminalize such actions but only prohibits unauthorized intrusions. However, there may be situations where a person believes that they have legal authority to enter someone else's home, but, in reality, they do not. Such situations can arise, for example, when a person is attempting to repossess property and enters the home to do so. If the person who entered the home had no legal right to do so, they may be charged with this offence. The fact that this offence is punishable as both an indictable and summary conviction offence enhances the effectiveness of the section. The punishment for summary conviction offences is generally less severe than those for indictable offences. However, the fact that the punishment is flexible means that the sentence can be tailored to fit the facts of each case. As such, a person who committed a more egregious offence may be punished more severely than someone whose offence was less serious. In conclusion, section 104(2) of the Criminal Code of Canada is an essential law that protects people's privacy in their homes. The fact that the punishment for this offence varies depending on the severity of the offence ensures that the sentence is appropriate for each case. This section underscores the importance of respecting people's privacy and reinforces people's belief that their homes are their sanctuaries.
STRATEGY
Section 104(2) of the Criminal Code of Canada deals with the offence of advocating genocide. It is a serious offence that can result in imprisonment for up to five years if the accused is found guilty of an indictable offence. The section is broadly interpreted and can have serious consequences if any individual is charged under this section. As such, there are several strategic considerations that must be taken into account when dealing with this section. In this discussion, we will discuss some of the key strategic considerations that one should take into account when dealing with section 104(2) of the Criminal Code. Firstly, it is important to note that section 104(2) makes it an offence to advocate or promote genocide, regardless of whether the accused individual had any intention of carrying out the genocide. Therefore, one must be mindful of the language and actions they employ when discussing such topics. Words that may seem harmless to one person may be interpreted as advocating genocide by others. It is important to be clear and precise in your communications to avoid being charged with this offence. Secondly, it is important to remember that the burden of proof rests with the Crown. This means that the Crown must prove beyond a reasonable doubt that the accused individual advocated or promoted genocide. The key words here are "advocate" and "promote." Mere discussion of certain topics, even if they are controversial, is not enough to establish guilt under this section. One must have advocated or promoted genocide in order to be charged and found guilty under this section. As such, it can be an effective strategy to challenge the Crown's interpretation of the accused's actions or statements to argue that they do not technically fall under the definition of "advocating" or "promoting" genocide. Thirdly, it may be beneficial to employ a proactive approach to addressing allegations or charges of advocating genocide. This approach involves taking steps to address the concerns raised by the Crown or other parties before charges are laid or before trial. One possible strategy is to reach out to community groups or organizations that work towards promoting peace and understanding and working with them to create anti-genocide messaging or programs. This type of response demonstrates a commitment to promoting a peaceful and tolerant society and can be used to offset allegations of advocating or promoting genocide. Finally, it is important to work closely with experienced legal counsel when dealing with a charge under section 104(2) of the Criminal Code. Experienced counsel can help to develop a robust and effective defence strategy that is tailored to the specific facts and circumstances of each case. They can help to challenge the Crown's interpretation of the accused's actions or statements and work towards achieving the best possible outcome for the accused individual. In conclusion, section 104(2) of the Criminal Code of Canada is a serious offence that requires careful consideration when dealing with allegations or charges under this section. It is important to be mindful of the language and actions employed when discussing such topics, challenge the Crown's interpretation of the accused's actions or statements, employ a proactive approach to addressing allegations or charges, and work closely with experienced legal counsel to develop an effective defence strategy. These strategic considerations can help to achieve the best possible outcome for the accused individual.