INTRODUCTION AND BRIEF DESCRIPTION

This section lays out which previous offenses can be considered for the purpose of determining if a convicted person has committed a second or subsequent offense.

SECTION WORDING

346(1.2) In determining, for the purpose of paragraph (1.1)(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, 239, 272 or 273, subsection 279(1) or section 279.1 or 344 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 346(1.2) of the Criminal Code of Canada pertains to determining whether a convicted person has committed a second or subsequent offence. Specifically, this section outlines the types of offences that can be considered as an earlier offence when determining if someone has committed a repeat offence. The section lists three categories of earlier offences that can be taken into account when determining whether someone has committed a repeat offence. These categories include offences under section 346 (which relates to theft under $5,000), offences under subsection 85(1) or (2) or section 244 or 244.2 (which relate to various types of serious violence), and a handful of other offences (e.g. sexual assault, kidnapping, and murder) that involve the use of firearms. However, the section also sets out a time limitation for considering an earlier offence. Specifically, an earlier offence is not considered if ten years have elapsed between the day on which the person was convicted of the earlier offence and the day on which they were convicted of the offence for which sentence is being imposed. This limitation applies regardless of any time spent in custody. Overall, this section is designed to ensure that repeat offenders are convicted and sentenced accordingly. By allowing earlier offences to be taken into account in certain circumstances, it helps to ensure that habitual offenders are held accountable for their actions and given appropriate sentences. At the same time, the time limitation ensures that people who have made mistakes in the past but have since been rehabilitated are not unfairly penalized.

COMMENTARY

Section 346(1.2) of the Criminal Code of Canada is an important provision that determines whether a convicted person has committed a second or subsequent offense. This provision is critical because it determines the sentencing and punishment that will be imposed on an offender in relation to the current offense. The provision sets out the offenses that will be considered as an earlier offense for the purpose of determining whether a person has committed a second or subsequent offense. These offenses include an offense under section 346, subsection 85(1) or (2) or section 244 or 244.2, or an offense under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1 or 344 if a firearm was used in the commission of the offense. The provision provides an exception where an earlier offense will not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offense and the day on which the person was convicted of the offense for which sentence is being imposed, not taking into account any time in custody. The purpose of this provision is to ensure that repeat offenders receive harsher sentences and more severe punishment as compared to first-time offenders. This is based on the assumption that repeat offenders are more likely to be a danger to society and are less likely to be rehabilitated through punishment and sentencing. Therefore, the provision is intended to act as a deterrent to repeat offenders, encouraging them to refrain from committing offenses in the future. The provision is also an essential element of the criminal justice system in providing fair and just sentencing. It ensures that the sentence imposed on an offender is proportionate to the severity of the offense committed, taking into account the offender's criminal record. By considering a person's earlier offenses, the court can make better-informed decisions about the appropriate sentence to be imposed. However, although this provision serves an important purpose in the criminal justice system, it is not without its flaws. Critics argue that the provision can lead to excessively harsh sentencing, particularly where the earlier offenses are minor or nonviolent in nature. In such cases, the provision can lead to sentencing that is disproportionate to the actual offense committed, resulting in an infringement of an offender's rights. In conclusion, Section 346(1.2) of the Criminal Code of Canada is an essential provision in the criminal justice system. It ensures that repeat offenders receive harsher sentences and appropriate punishment while providing for fair and just sentencing. However, there are concerns that it can also lead to disproportionate sentencing, and it is important that these concerns are taken into account in the application of the provision.

STRATEGY

Section 346(1.2) of the Criminal Code of Canada is a provision that has significant implications for individuals who have been convicted of certain offenses and face a subsequent conviction. This provision outlines the criteria for determining whether a person is a repeat offender based on their prior convictions. In this essay, we will discuss some of the strategic considerations when dealing with this section and some strategies that could be employed. One of the primary strategic considerations when dealing with section 346(1.2) is the potential impact on sentencing. If an individual is convicted of a subsequent offense, and their prior offenses fall under the criteria listed in this provision, they will be subject to more severe sentencing. This is because the court will treat them as a repeat offender, and the sentencing guidelines for repeat offenders are generally more stringent. Therefore, one strategy that could be employed is to challenge the validity of the prior conviction(s). This could involve demonstrating that the prior offenses were not properly adjudicated, or that there were errors made in the process that led to the conviction. If successful, this could remove one or more of the prior offenses from consideration under section 346(1.2), potentially reducing the severity of the sentence. Another strategy that could be employed is to negotiate a plea deal with the Crown prosecutor. This could involve agreeing to plead guilty to a less serious offense in exchange for a reduced sentence. If successful, this would limit the impact of section 346(1.2) on the sentencing process. Additionally, it may be beneficial for the defense to emphasize mitigating factors that could reduce the severity of the sentence. This could include factors such as the defendant's remorse for the offense, their efforts to seek rehabilitation, or their personal circumstances that may have contributed to their criminal behavior. By emphasizing these factors, the defense may be able to persuade the court to impose a more lenient sentence. Finally, it is important to consider the potential long-term consequences of a conviction under section 346(1.2). This could include restrictions on the individual's ability to travel, obtain employment, or maintain certain licenses or certifications. Therefore, it may be beneficial to work with a criminal defense lawyer who has experience in this area and can provide guidance on how to minimize the impact of a conviction under section 346(1.2). In conclusion, section 346(1.2) of the Criminal Code of Canada is a provision that can have significant implications for individuals facing a subsequent conviction. By understanding the criteria for determining a repeat offender under this section and employing strategic considerations such as challenging the validity of prior convictions, negotiating a plea deal, emphasizing mitigating factors, and considering the long-term consequences, individuals may be able to minimize the impact of this provision on their sentencing.