INTRODUCTION AND BRIEF DESCRIPTION
This section outlines which offenses are considered as earlier offenses for the purpose of determining if a convicted person has committed a second or subsequent offense.
SECTION WORDING
244.2(4) In determining, for the purpose of paragraph (3)(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 (c) an offence under section 220, 236, 239, 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 244.2(4) of the Criminal Code of Canada deals with the sentencing of individuals who have been convicted of certain offences multiple times. The section outlines the criteria that will be considered in determining whether the convicted person has committed a second or subsequent offence. Specifically, the section lists offences that will be considered as earlier offences when determining whether an individual has committed a second or subsequent offence. These offences include those under section 244 (which relates to the use of firearms in the commission of certain offences) and other related sections that involve the use of firearms, as well as a range of other violent offences. However, the section also notes that an earlier offence will not be taken into account if it occurred more than 10 years prior to the current offence, provided that the individual was not in custody during this time. In practical terms, this section of the Criminal Code is used to guide judges and other legal professionals when determining appropriate sentences for individuals who have been convicted of certain offences multiple times. By considering previous convictions and the timeframes involved, judges can make informed decisions about how best to protect public safety and meet the needs of individual offenders.
COMMENTARY
Section 244.2(4) of the Criminal Code of Canada deals with the consideration of prior offences in determining sentence for a convicted person under section 244.2(3)(a). The section specifies that any earlier conviction of certain offences, including section 244, subsection 85(1) or (2), or section 244, will be considered an earlier offence for the purposes of determining whether the convicted person has committed a second or subsequent offence. In addition, any conviction under section 220, 236, 239, 272, or 273, subsection 279(1), or section 279.1, 344 or 346 where a firearm was used in the commission of the offence, will also be considered an earlier offence. This means that if the convicted person has previously been convicted of any of these offences, their sentence will be increased based on the number of prior convictions. However, the section also includes a clause that allows for an earlier offence to not be taken into account if 10 years have elapsed between the day of conviction for the earlier offence and the day of conviction for the offence for which the sentence is being imposed, not taking into account any time spent in custody. This clause aims to ensure that minor or non-violent offences committed in a person's past do not unfairly impact their sentencing for a current offence. Overall, section 244.2(4) plays an important role in preventing recidivism and promoting public safety. By increasing the sentence for repeat offences, it serves as a deterrent against further criminal activity. At the same time, the 10-year rule allows for a fair and proportionate sentencing process that accounts for the nature of the crime committed and the individual's criminal history. It is important to note, however, that the section's effectiveness depends on the accuracy and consistency of record-keeping and information-sharing among criminal justice agencies. A lack of accurate record-keeping could result in a convict receiving a less severe sentence than they should, or potentially committing further crimes without proper intervention. It is therefore important for government agencies responsible for maintaining criminal records to ensure that the information they hold is up-to-date, accurate, and easily accessible to relevant criminal justice agencies. In conclusion, section 244.2(4) of the Criminal Code of Canada is an important provision that helps to ensure fairness and proportionality in sentencing for repeat offenders. It highlights the need for accurate record-keeping and information-sharing to ensure effective and impactful enforcement of criminal law.
STRATEGY
Section 244.2(4) of the Criminal Code of Canada provides guidance on how to determine whether a convicted person has committed a second or subsequent offence, particularly in cases where the earlier offence occurred in the distant past. When dealing with this section of the Criminal Code, there are several strategic considerations that lawyers may need to take into account to ensure that their clients receive optimum legal representation. One of the first strategic considerations when dealing with section 244.2(4) is to determine whether the earlier offence should be taken into account. In some cases, it may be possible to argue that the 10-year limitation period should apply and the earlier offence should be excluded, especially if there is insufficient evidence to prove that the earlier offence was committed. Additionally, if the earlier offence is a minor offence and the current offence is a serious offence, it may be possible to exclude the earlier offence from consideration. Another strategic consideration when dealing with section 244.2(4) is to understand the elements of the prior offence. Depending on the nature of the prior offence, it could be difficult to exclude it from consideration. For instance, if the earlier offence is under section 85(1) or (2) or section 244 of the Criminal Code, it could be difficult to argue against its inclusion since these offences involve extreme violence. Another strategic consideration when dealing with section 244.2(4) is to find an appropriate sentencing strategy. Since the inclusion of an earlier offence could have serious implications for sentencing, a lawyer may need to consider various strategies, such as seeking a plea bargain or applying for a lighter sentence. This may also involve negotiating with the prosecutor to exclude the earlier offence from consideration or presenting mitigating factors that could reduce the severity of the sentence. In conclusion, section 244.2(4) of the Criminal Code of Canada is an important provision that lawyers should be familiar with. It is vital for lawyers to understand the strategic considerations involved when dealing with this provision and to employ appropriate strategies to ensure that their clients receive optimum legal representation. By doing so, lawyers can help their clients achieve the best possible outcomes under the law.