section 683(7)

INTRODUCTION AND BRIEF DESCRIPTION

The court of appeal must consider the offenders compliance with their undertaking or recognizance when deciding whether to change their sentence.

SECTION WORDING

683(7) If the offender has been ordered to enter into an undertaking or recognizance under subsection (5.1), the court of appeal shall, in determining whether to vary the sentence of the offender, take into account the conditions of that undertaking or recognizance and the period during which they were imposed.

EXPLANATION

Section 683(7) of the Criminal Code of Canada outlines the considerations that a court of appeal must take into account when determining whether to vary the sentence of an offender who has been ordered to enter into an undertaking or recognizance under subsection (5.1). This provision recognizes that in some cases, it may be appropriate to impose certain conditions on an individual as part of their sentence, such as abstaining from drugs or alcohol, attending counselling sessions, or staying away from certain places or people. When a court of appeal is considering whether to vary a sentence, it must take into account the conditions of the undertaking or recognizance that the offender has been ordered to enter into, as well as the period of time during which those conditions have been imposed. This means that the court must consider whether the offender has complied with the conditions of their undertaking or recognizance, and whether those conditions have been effective in helping the offender to rehabilitate and avoid reoffending. The purpose of this provision is to ensure that courts of appeal take a comprehensive approach to sentencing, which includes considering not only the severity of the crime but also the potential for rehabilitation and the effectiveness of any conditions imposed as part of the sentence. By giving weight to the conditions of the undertaking or recognizance, the court of appeal can make a more informed and nuanced decision about whether to vary the sentence of the offender, in order to more effectively address the underlying issues that led to the offence.

COMMENTARY

Section 683(7) of the Criminal Code of Canada is an important provision in the criminal justice system that provides guidance to the court of appeal in determining whether to vary the sentence of an offender who has been ordered to enter into an undertaking or recognizance under subsection (5.1) of the same section. The purpose of this provision is to ensure that the conditions of the undertaking or recognizance are taken into account when determining the sentence of the offender. This is crucial because these conditions are often set to address the specific circumstances of the offender and to reduce the risk of reoffending. For instance, an offender may be ordered to enter into an undertaking or recognizance that requires them to attend counselling or therapy sessions, abstain from alcohol or drugs, or stay away from certain individuals or places. These conditions can have a significant impact on the offender's rehabilitation and future behaviour, and it is therefore important that they are taken into account when determining the sentence of the offender. Furthermore, the period during which the conditions were imposed is also a relevant consideration when determining the sentence of the offender. If the offender has complied with the conditions for a significant period of time, this may be an indication of their commitment to rehabilitation and their willingness to change their behaviour. On the other hand, if the offender has failed to comply with the conditions or has breached the undertaking or recognizance, this may be a factor that weighs against a reduction in their sentence. It is important to note that section 683(7) does not impose any mandatory considerations on the court of appeal. The provision simply requires the court to take into account the conditions of the undertaking or recognizance and the period during which they were imposed when determining whether to vary the sentence of the offender. This allows for flexibility and discretion in the sentencing process, and enables the court to consider the unique circumstances of each case. Overall, section 683(7) is a valuable provision in the Criminal Code of Canada that ensures that the conditions of an undertaking or recognizance are given proper consideration when determining the sentence of an offender. This helps to promote the rehabilitation of offenders and reduce the risk of reoffending, which is ultimately beneficial to society as a whole.

STRATEGY

Section 683(7) of the Criminal Code of Canada pertains to sentencing appeals where an offender has been ordered to enter into an undertaking or recognizance under subsection (5.1). This section provides the Court of Appeal with the authority to take into account the conditions of the undertaking or recognizance and the duration for which they were imposed when determining whether to vary the sentence of the offender. In practice, there are several strategic considerations that lawyers should keep in mind when dealing with this provision. One crucial strategy is to ensure that the conditions of the undertaking or recognizance are designed to mitigate the risk of reoffending and promote rehabilitation. This is because the Court of Appeal is likely to examine these conditions when determining whether to vary the sentence. By crafting conditions that are tailored to address the offender's specific needs and risks, the lawyer can provide a compelling argument to the Court of Appeal that the original sentence was appropriate given the circumstances. Furthermore, if the Court of Appeal sees that the conditions imposed were suitable and effective, they may decide to uphold the sentence. Another important consideration is the timing and presentation of the appeal. Lawyers must ensure that they file for an appeal within the prescribed time limit as set out in the Criminal Code of Canada. It is also essential to present the appeal in a clear and concise manner, highlighting the relevant provisions of the Criminal Code, legal precedents, and any other relevant case facts. Having a well-structured and compelling appeal can increase the likelihood of success. In addition, lawyers must be prepared to provide evidence that demonstrates that the original sentencing judge erred in their decision. This could involve showing that the sentence was excessive or inadequate given the circumstances of the case. To achieve this, lawyers may need to gather and present additional evidence, such as expert testimony, medical reports, or statements from the offender's family or friends. Moreover, it may be beneficial to engage in negotiation or settlement discussions with Crown prosecutors before filing an appeal. By negotiating an agreement, the offender may be able to receive a reduced sentence or a lighter set of conditions under the undertaking or recognizance. This can help avoid the cost and time-consuming nature of an appeal and provide a certain amount of clarity for the offender. Finally, lawyers should consider the public perception of the case. If an offence has received public attention, it is essential to consider how the appeal will be perceived by the media and the public. Arguing that the sentence was too lenient may lead to public outcry, while arguing that it was too harsh may seem insensitive to the victim and their family. Lawyers must find a balance that is both legally sound and socially sensitive. In conclusion, section 683(7) of the Criminal Code of Canada provides lawyers with significant opportunities to challenge the original sentence of an offender by taking into account their conditions of the undertaking or recognizance. By being strategic and carefully considering the circumstances of each case, lawyers can increase the chances of success when appealing a sentence.