section 239(2)

INTRODUCTION AND BRIEF DESCRIPTION

Section 239(2) specifies the types of offences that are considered as earlier offences when determining if a convicted person has committed a second or subsequent offence, and the time frame in which an earlier offence can be taken into account.

SECTION WORDING

239(2) In determining, for the purpose of paragraph (1)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under this section; (b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or (c) an offence under section 220, 236, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence. However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.

EXPLANATION

Section 239(2) of the Criminal Code of Canada is a provision that deals with sentencing for repeat offenders of certain violent offences. It specifies which prior convictions can be considered as earlier offences" when determining whether a person is being sentenced for a second or subsequent offence under section 239(1)(a), which relates to discharging a firearm with intent to wound, maim, or endanger life." The provision lists several specific offences that can be considered as earlier offences" for the purposes of sentencing under section 239, including firearms offences, as well as offences related to sexual assault and the use of violence or threats of violence. However, an earlier offence cannot be considered if at least 10 years have elapsed between the prior conviction and the current conviction, as long as the person has not been in custody during that time. This provision serves to increase the penalties for individuals who have previously been convicted of certain serious offences, particularly those involving violence or the use of firearms. By considering prior convictions when determining an offender's sentence, the courts can impose more severe punishment on those who have demonstrated a pattern of violent behaviour or disregard for the law. Overall, Section 239(2) helps to ensure that repeat violent offenders are held accountable for their actions and that the justice system works to protect public safety.

COMMENTARY

Section 239(2) of the Criminal Code of Canada reflects the Canadian government's commitment to holding repeat offenders accountable for their actions. It allows courts to consider previous convictions when sentencing individuals convicted of crimes related to firearms or violence, particularly those who have been convicted of similar offenses in the past. The section makes it clear that certain offenses are considered to be previous offenses and will be taken into account when determining whether an individual has committed a second or subsequent offense. These offenses include serious violent crimes such as murder, attempted murder, manslaughter, and sexual assault, as well as firearm-related offenses like destroying or tampering with a firearm, possessing a firearm while prohibited, and using a firearm while committing a crime. The section recognizes that there are certain circumstances where previous convictions should not be taken into account. If an individual was convicted of an earlier offense but more than ten years have passed since that conviction and the current crime, the earlier offense will not be considered. This prevents the imposition of harsher penalties on individuals who may have made mistakes in the past but have since turned their lives around and are no longer a threat to society. Section 239(2) serves as a powerful deterrent to individuals who may be considering engaging in violent or firearm-related crimes. The threat of harsher penalties for repeat offenses sends a clear message that the Canadian justice system takes these types of crimes seriously and that there will be consequences for those who commit them. The section also underscores the importance of addressing the underlying causes of violence and gun-related crimes. While punishment is an important aspect of criminal justice, it is not enough to prevent reoffending in many cases. Prevention efforts must be targeted towards addressing the root causes of violence, including poverty, lack of education and job opportunities, and mental health issues. In conclusion, Section 239(2) of the Criminal Code of Canada plays a critical role in keeping communities safe from violent crime and firearm-related offenses. By ensuring that repeat offenders are held accountable for their actions, the section sends a strong message that such crimes will not be tolerated in Canadian society. At the same time, it recognizes that there are limits to punishment and underscores the need for prevention and intervention efforts to address the root causes of criminal behavior.

STRATEGY

Section 239(2) of the Criminal Code of Canada is an important provision when it comes to determining the sentence for someone who has been convicted of a second or subsequent offence. It outlines the types of offences that are considered "earlier offences," including certain violent crimes and offences involving the use of a firearm. It also establishes a time limit of 10 years between convictions, after which an earlier offence cannot be taken into account. One strategic consideration when dealing with this section is to carefully examine the facts of the case and determine which offences, if any, should be considered as earlier offences. This can have a significant impact on the sentence that the offender receives. For example, if the offender has previous convictions for offences related to violence or firearms, their sentence may be more severe than if they have no prior convictions. Another strategy that could be employed is to try to argue that an earlier offence should not be taken into account, even if it falls within one of the categories listed in the section. This could be based on factors such as the seriousness of the offence, the length of time that has passed since the conviction, or evidence that the offender has taken steps to rehabilitate themselves in the intervening period. A third strategy could be to negotiate a plea bargain with the prosecution that takes into account the provisions of section 239(2). For example, the offender might agree to plead guilty to a lesser offence in exchange for the prosecution agreeing not to seek a higher sentence based on previous convictions. Overall, the key strategic considerations when dealing with section 239(2) are to carefully assess the potential impact of previous convictions on the offender's sentence, and to develop arguments and negotiating strategies that take into account the specific circumstances of the case. By doing so, it may be possible to achieve a more favourable outcome for all parties involved.