INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the penalties for committing an offence related to mischief.
SECTION WORDING
412(1) Every one who commits an offence under section 407, 408, 409, 410 or 411 is guilty of (a) an indictable offence and is liable to imprisonment for a term not exceeding two years; or (b) an offence punishable on summary conviction.
EXPLANATION
Section 412(1) of the Criminal Code of Canada outlines the penalties for individuals who commit certain offences related to publications that promote hate or discrimination. Specifically, this section applies to offences under sections 407, 408, 409, 410, and 411 of the Criminal Code. Section 407 makes it an offence to knowingly promote hatred against an identifiable group, while section 408 makes it an offence to incite hatred against any identifiable group. Section 409 prohibits individuals from wilfully promoting hatred against any identifiable group while section 410 makes it an offence to communicate statements that incite or promote hatred against an identifiable group in a public place. Section 411 makes it an offence to publish certain hate propaganda. Under section 412(1), individuals who commit an offence under any of these sections are guilty of an indictable offence and can face a maximum penalty of imprisonment for up to two years. However, they may also be charged with an offence that is punishable on summary conviction. The purpose of these offences is to prevent individuals or groups from promoting or inciting hatred against an identifiable group, as this behaviour can be harmful and dangerous to individuals within that group. By holding individuals accountable for their actions and providing consequences, this section helps to deter hate speech and discriminatory behaviour.
COMMENTARY
Section 412(1) of the Criminal Code of Canada outlines the punishments for individuals who commit offences under sections 407, 408, 409, 410, or 411. These sections of the Criminal Code relate to mischief offences, including mischief causing actual danger to life, mischief causing actual damage to property, and mischief committed in relation to religious property, among others. As outlined in section 412(1)(a), anyone who commits an offence under these sections of the Criminal Code can be found guilty of an indictable offence and potentially face imprisonment for up to two years. An indictable offence is a more serious crime than an offense punishable by summary conviction. To be convicted of an indictable offence, a defendant must undergo a formal trial with a jury or a judge. This level of severity in punishment is appropriate given the nature of the offences listed in sections 407-411. Mischief causing actual danger to life or committing mischief in relation to religious property, for example, can have serious consequences and pose a threat to public safety or cause harm to a community. Alternatively, section 412(1)(b) states that an individual who commits such an offence can be found guilty of an offence punishable by summary conviction. Summary conviction is a less severe punishment and usually does not involve a formal trial with a jury, but is instead decided by a judge alone. Offences punishable by summary conviction carry lesser penalties and are generally considered less serious than indictable offences. However, it is important to note that even such offences have consequences. A conviction for a summary conviction offence can result in a criminal record, fines, and other consequences. The inclusion of both options for punishment in section 412(1) acknowledges that the severity of mischief offences can vary depending on the circumstances. For example, an individual who acts recklessly and causes minor damage to property may not be subject to the same punishment as an individual who intentionally causes significant harm. The ability to charge individuals with either an indictable offence or an offence punishable by summary conviction allows for flexibility in addressing the specific nature of the offence. Overall, section 412(1) serves to ensure that individuals who commit mischief offences are held accountable for their actions. The inclusion of varying levels of punishment recognizes the importance of proportionality in criminal justice. By providing for both indictable and summary conviction offences, section 412(1) ensures that offences under sections 407-411 are taken seriously, while simultaneously acknowledging that the severity of the offence can vary. Ultimately, this provision works to maintain public safety and societal order by ensuring that individuals who engage in criminal behaviour face appropriate consequences.
STRATEGY
Section 412(1) of the Criminal Code of Canada deals with offences related to identity fraud. Specifically, this section outlines the penalties for offences committed under sections 407, 408, 409, 410 or 411, which relate to the possession, sale, or use of someone else's identity information or personal identifying information. One of the strategic considerations when dealing with this section of the Criminal Code of Canada is the severity of the penalties. Offences committed under this section are considered indictable offences, which means that they are the most serious type of criminal offence in Canada. This means that if these charges are laid, the accused is potentially facing a prison sentence of up to two years. Furthermore, even if the accused is charged with a summary conviction offence, they can still face up to six months in jail and a fine of up to $5,000. Given the severe consequences associated with a conviction under this section, it is crucial to have a strong defence strategy. One potential strategy is to challenge the evidence presented by the Crown. For example, if the accused is charged with possession of someone else's identity information, the defence may argue that the accused did not knowingly possess the information in question. In order to successfully challenge the evidence, the defence will need to carefully review the evidence presented by the Crown, and may need to rely on expert testimony. Another strategy that may be employed is to negotiate with the Crown for a plea bargain. Depending on the circumstances of the case, it may be possible to negotiate a plea bargain whereby the accused pleads guilty to a lesser offence in return for a reduced sentence. This may be particularly useful in cases where the evidence against the accused is strong, but there are mitigating circumstances that could be presented in mitigation. A third strategy is to challenge the constitutionality of the law itself. While this may be a more difficult strategy to pursue, it could be possible to argue that the law as written violates the Charter of Rights and Freedoms. For example, the defence could argue that the law is too broad and vague, and thus infringes on the accused's right to be presumed innocent until proven guilty. In conclusion, Section 412(1) of the Criminal Code of Canada is a serious section of the law, and anyone who is charged with an offence under this section should consider the severity of the penalties they are facing. There are a number of strategic considerations that must be taken into account when preparing a defence strategy, and a skilled criminal defence lawyer can help to navigate this complex area of the law. From challenging the evidence presented by the Crown, to negotiating a plea bargain, to challenging the constitutionality of the law itself, there are a variety of strategies that can be employed to secure the best possible outcome for the accused.