Criminal Code of Canada - section 264(4) - Factors to be considered

section 264(4)

INTRODUCTION AND BRIEF DESCRIPTION

This section of the Criminal Code of Canada allows for an aggravating factor to be considered during sentencing if a person convicted of an offence had previously contravened an order or recognizance.

SECTION WORDING

264(4) Where a person is convicted of an offence under this section, the court imposing the sentence on the person shall consider as an aggravating factor that, at the time the offence was committed, the person contravened (a) the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.1 or 810.2; or (b) the terms or conditions of any other order or recognizance made or entered into under the common law or a provision of this or any other Act of Parliament or of a province that is similar in effect to an order or recognizance referred to in paragraph (a).

EXPLANATION

Section 264(4) of the Criminal Code of Canada is a provision that applies when a person is convicted of an offence under section 264 of the Code, which deals with criminal harassment. In such cases, the court that imposes the sentence on the offender must take into account whether the offender contravened any order or recognizance made pursuant to section 161 or section 810.1, 810.2 or 810.2 of the Code, or any other order or recognizance made or entered into under the common law or a provision of any Act of Parliament or of a province that is similar in effect to such orders or recognizances. The purpose of this provision is to ensure that the court considers the seriousness of the offender's conduct and the risk they pose to the victim and the community. If the offender breached an order or recognizance, it suggests that they have little respect for the court's authority and are likely to reoffend. Considering this as an aggravating factor can result in a harsher sentence being imposed on the offender. Examples of orders or recognizances that may be relevant in the context of criminal harassment include restraining orders, peace bonds, or orders to stay away from the victim or a particular location. By taking into account the breach of such orders or recognizances, the court is able to send a clear message to offenders that such conduct will not be tolerated and that there will be serious consequences for their actions.

COMMENTARY

Section 264(4) of the Criminal Code of Canada is a vital component of the Canadian legal system, addressing the aggravating factors that can be considered during a sentencing hearing for individuals convicted of an offence under section 264. The section asserts that in cases where a person has been convicted of an offence under section 264, the court shall consider as an aggravating factor that, at the time the offence took place, the person had contravened the terms or conditions of any order or recognizance made by police or the court. This condition aims to impose stricter consequences when an individual has breached the terms of the conditional release. Section 161 of the Criminal Code of Canada provides provisions for a peace bond. A peace bond is an order granted by the court requiring an individual to keep the peace and maintain good behavior for a defined period. Section 810, 810.1, and 810.2 of the Code deal with recognizance orders. Such orders require individuals to abide by terms and conditions determined by the court. Some of these conditions could include not communicating with one or more particular people or staying away from certain areas. Section 264(4)'s inclusion of breach of any other order or recognizance under the Common Law or provisions of any other Act of Parliament or province ensure that the section includes any similar persuasive orders that do not fall under the above mentioned sections. The section acts to ensure that individuals convicted of the offence under section 264 are held accountable for their actions, even where they have been granted conditional release orders. This factor recognizes that a breach of a conditional release is a serious matter and must be treated as such. This breaches the trust that the courts have placed in the individual placed under the conditional release. Overall, section 264(4) is a crucial provision in the Canadian Criminal Code, as it emphasizes the severity of breaches of conditions following the imposition of a peace bond or recognizance. The inclusion of the provision forcefully urges that individuals obey the conditions they are under, with the main aim of enhancing public safety. Its enforcement of an aggravating factor acts as a deterrent to individuals who may consider breaching their release conditions. It further emphasizes that failure to respect and abide by the court and law enforcement orders will lead to more severe consequences. Through this section, the Canadian judiciary works to ensure that individuals are held accountable for their actions, and the right measures are enforced within the realm of the legal system.

STRATEGY

Section 264(4) of the Criminal Code of Canada is a provision that imposes an aggravating factor if a person contravenes the terms or conditions of an order made pursuant to section 161 or a recognizance entered into pursuant to section 810, 810.1 or 810.2. The provision is aimed at deterrence and punishment by enhancing the sentence for a person who commits an offence while being subject to an order or recognizance. When dealing with this section of the Criminal Code of Canada, lawyers and prosecutors must consider several strategic considerations: 1. Proving the Contravention: The first step is to prove that the person has contravened the terms or conditions of an order or recognizance. This may require evidence such as witness statements, surveillance footage, or other documentation to demonstrate that the person has breached the conditions. The burden of proof is on the prosecution to establish beyond a reasonable doubt that the person has contravened the order or recognizance. 2. Sentencing Impact: Prosecutors must also consider the impact of the aggravating factor on the sentence that will be imposed. The provision does not specify the extent of the sentence increase, but it does require the court to consider this aggravating factor when imposing sentence. The prosecutor must be prepared to argue why the aggravating factor warrants a sentence increase and how it relates to the gravity of the offence committed. 3. Pre-Sentencing Considerations: Defence counsel must also consider how to mitigate the impact of the aggravating factor during the sentencing process. This may involve presenting evidence of the person's circumstances or rehabilitation efforts to demonstrate that the contravention was an isolated incident. They may also argue that the aggravating factor should not be given significant weight, particularly if the breach was minor and did not increase the risk to public safety. 4. Overall Strategy: Legal professionals must consider their overall strategy in light of this provision. For example, the prosecutor may choose to charge a person with both the underlying offence and the breach of the order or recognizance as separate offences, allowing for greater sentencing flexibility. Alternatively, the defence may seek to negotiate a plea deal that takes into account the aggravating factor and seeks to minimize the overall sentence. In terms of strategies that could be employed, there are several approaches that may be effective: 1. Public Safety: Arguing that the breach of the order or recognizance increased the risk to public safety can be a powerful persuasive tool when seeking a sentence increase. This may be particularly effective if the order or recognizance was put in place to protect a vulnerable person or address a specific risk. 2. Rehabilitation: Presenting evidence of rehabilitation efforts may show the court that the person has taken steps to address the underlying issues that led to the contravention. This can demonstrate that the breach was an isolated incident and may reduce the weight given to the aggravating factor during sentencing. 3. Procedural Arguments: Challenging the validity of the order or recognizance may be a viable strategy in some cases. If the order or recognizance was not properly issued or was based on flawed reasoning, it may not be considered a "similar" order or recognizance for the purposes of the provision, thereby avoiding the aggravating factor. 4. Sentencing Recommendations: Both the prosecution and defence may recommend a specific sentence range that takes into account the aggravating factor. This can demonstrate a willingness to cooperate and find a common ground, potentially resulting in a more favourable sentence outcome for the person. In conclusion, Section 264(4) of the Criminal Code of Canada is a provision that must be carefully considered by legal professionals when dealing with a case involving a breach of an order or recognizance. By understanding the key strategic considerations and employing effective strategies, legal professionals can navigate this provision to achieve a just and reasonable outcome for their clients.