section 672.71(2)

INTRODUCTION AND BRIEF DESCRIPTION

When a dual status offender is convicted or discharged but not sentenced to imprisonment, the custodial disposition takes precedence over any probation order in case of an offence.

SECTION WORDING

672.71(2) When a dual status offender is convicted or discharged on the conditions set out in a probation order made under section 730 in respect of an offence but is not sentenced to a term of imprisonment, the custodial disposition in respect of the accused comes into force and, notwithstanding subsection 732.2(1), takes precedence over any probation order made in respect of the offence.

EXPLANATION

Section 672.71(2) of the Criminal Code of Canada deals with dual status offenders, who are young persons who have been found guilty of an offence and are subject to both the Youth Criminal Justice Act (YCJA) and the Criminal Code of Canada. In such cases, a sentencing judge has the authority to order a custodial disposition, which can include a term of imprisonment or placement in a youth detention center. If a dual status offender is convicted of an offence and is discharged on the conditions set out in a probation order made under section 730 of the Criminal Code, then section 672.71(2) comes into force. This means that if the offender is not sentenced to a term of imprisonment, then the custodial disposition will take precedence over any probation order made in respect of the offence. What this means is that the sentencing judge can order a custodial disposition even if the offender has been placed on probation. This is because the custodial disposition is considered to be a more serious sanction and is therefore given priority over probation. Overall, this section is aimed at ensuring that dual status offenders receive appropriate and effective sentencing. By allowing for custodial dispositions in cases where probation may not be sufficient, section 672.71(2) aims to protect the public while also providing rehabilitative opportunities for young persons who have committed offences.

COMMENTARY

Section 672.71(2) of the Criminal Code of Canada deals with the issue of dual status offenders in the Canadian criminal justice system. Dual status offenders are individuals who are classified as both young offenders and adults under the Youth Criminal Justice Act (YCJA) and the Criminal Code, respectively. This means that they can be charged and sentenced as either a youth or an adult, depending on the nature of the offence committed and other factors. When a dual status offender is convicted of an offence but is not sentenced to a term of imprisonment, the custodial disposition in respect of the accused comes into force. This means that the offender is placed in the custody of a provincial or territorial director, who has the power to impose certain conditions on their release. These conditions may include reporting requirements, curfews, and restrictions on association, among others. The purpose of these conditions is to ensure that the offender does not pose a threat to society and is given the opportunity to rehabilitate. Section 672.71(2) takes precedence over any probation order made in respect of the offence. This means that if a probation order was made under section 730 of the Criminal Code in addition to the custodial disposition, the custodial disposition would take precedence and the probation order would be secondary. This is because the custodial disposition is considered a more serious sentence than probation and is seen as necessary for the protection of society in cases involving dual status offenders. The purpose of section 672.71(2) is to address the unique challenges and complexities that arise when dealing with dual status offenders. These individuals are often at a high risk of reoffending and require a different approach than other offenders. By prioritizing the custodial disposition over probation, the system aims to provide greater protection to the public while also giving these offenders the opportunity to address their underlying issues and work towards rehabilitation. However, while section 672.71(2) serves an important purpose, it is not without its limitations. Critics argue that it does not address the root causes of criminal behaviour, such as poverty, addiction, and mental health issues. They also point out that custodial dispositions can be costly and may not always be effective, particularly when dealing with younger offenders who may be more responsive to community-based programs. Overall, section 672.71(2) is a necessary provision in the Criminal Code that recognizes the unique challenges posed by dual status offenders. However, it is important to ensure that custodial dispositions are used as a last resort and that efforts are made to address the underlying issues that contribute to criminal behaviour.

STRATEGY

Section 672.71(2) of the Criminal Code of Canada pertains to dual status offenders, i.e. individuals who are serving a sentence for a previous offence and are convicted of another offence while still serving that sentence. The provision states that if such an offender is not sentenced to a term of imprisonment for the subsequent offence, the custodial disposition (i.e. serving the remainder of the previous sentence) takes precedence over any probation order made in respect of the new offence. This provision raises several strategic considerations and potential strategies for dealing with such cases. One key consideration is that dual status offenders present a higher risk of recidivism and pose a challenge for the justice system in terms of addressing both the underlying issues that led to their initial conviction and any new offending behaviour. Therefore, it is important to identify and address any underlying issues, such as substance abuse, mental health problems, or lack of social support, that may be contributing to their offending behaviour. One possible strategy for dealing with dual status offenders is to prioritize rehabilitation and support services as early as possible in the case process. This could involve assessing the offender's needs and providing them with a range of interventions, such as counselling, substance abuse treatment, and vocational training, with a focus on reducing their risk of reoffending. This approach would also require collaboration between different justice and community organizations to ensure the continuity of care and support throughout the offender's sentence and beyond. Another strategy would be to enhance information sharing and collaboration between probation officers and correctional staff. This could involve developing protocols and guidelines for sharing information about the offender's progress and compliance with the probation order and the custodial sentence, as well as coordinating any necessary interventions or supports. This approach would require balancing the need for information sharing with privacy considerations and ensuring that all parties involved in the case are working towards the same goals. It may also be beneficial to consider alternatives to custodial sentences for dual status offenders who are convicted of new offences but are not sentenced to imprisonment. This could include alternatives such as community service, restorative justice processes, or intensive supervision programs, which could address the underlying issues and reduce the risk of reoffending. However, such alternatives would require careful consideration of the specific circumstances of each case and the balance between the needs of the offender and the protection of the public. In conclusion, dealing with dual status offenders requires a comprehensive and collaborative approach that addresses the underlying issues, prioritizes rehabilitation and support services, and enhances communication and coordination between justice and community organizations. By adopting such strategies, the justice system can effectively address the challenges posed by these complex cases and reduce the risk of reoffending.