INTRODUCTION AND BRIEF DESCRIPTION
This section allows for evidence of previous convictions to be presented in cases where a greater punishment may be imposed.
SECTION WORDING
727(2) Where an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, the court shall, on application by the prosecutor and on being satisfied that the offender was notified in accordance with subsection (1), ask whether the offender was previously convicted and, if the offender does not admit to any previous convictions, evidence of previous convictions may be adduced.
EXPLANATION
Section 727(2) of the Criminal Code of Canada is a provision that deals with the sentencing of offenders who have a history of previous convictions. Essentially, this provision allows for an enhanced punishment to be imposed if an offender has been previously convicted of certain offences. Under this section, if an offender is convicted of an offence for which a greater punishment can be imposed due to previous convictions, the prosecutor may apply to the court to request evidence of those previous convictions. The court will only allow such evidence to be presented if it is satisfied that the offender was properly notified of this possibility under subsection (1). The purpose of this section is to provide for the protection of society by imposing harsher penalties on repeat offenders. It recognizes that those who have a history of criminal behaviour pose a greater risk to public safety and, therefore, should be dealt with more severely than first-time offenders. This provision also serves as a deterrent to potential offenders who may be considering committing crimes. The knowledge that a previous conviction could result in more severe punishment may dissuade some individuals from engaging in criminal activity. Overall, section 727(2) is an important tool in the administration of justice in Canada. It serves the dual purposes of protecting society and deterring criminal behaviour while also ensuring that offenders are held accountable for their actions.
COMMENTARY
Section 727(2) of the Criminal Code of Canada addresses the issue of whether an offender has previous convictions and whether these previous convictions should be taken into account when imposing a sentence for a current offence. The section states that when an offender is convicted of an offence for which a greater punishment may be imposed by reason of previous convictions, the court must inquire about any previous convictions before imposing a sentence. This inquiry is made at the request of the prosecutor, who must also provide evidence that the offender was notified in accordance with subsection (1). If the offender denies having any previous convictions, evidence of previous convictions may be adduced by the prosecutor. The purpose of this section is to allow the court to take into account an offender's prior criminal record when determining an appropriate sentence for a new offence. This is based on the principle that repeat offenders should receive a more severe punishment than first-time offenders. Previous convictions may be seen as evidence of a pattern of criminal behavior and a likelihood of reoffending. However, this section has been criticized for potentially leading to harsher sentences for repeat offenders than for first-time offenders, regardless of the severity of the current offence. This is particularly true for non-violent offences, where a previous criminal record may not necessarily be an indicator of future risk. Furthermore, the section does not address the issue of whether an offender's previous convictions were obtained fairly and in accordance with the law. This raises concerns about the reliability of previous convictions and the potential for unjustified harsh sentences based on unreliable evidence. In addition, the section places the burden of proof on the offender to admit to previous convictions or to disprove the evidence presented by the prosecutor. This may be problematic, as it places additional pressure on the offender and may result in a lack of due process. Overall, Section 727(2) of the Criminal Code of Canada attempts to address the issue of repeat offenders and the need for more severe punishment in certain cases. However, its potential negative implications must be considered and balanced against the goal of reducing recidivism and increasing public safety. The section could benefit from further review and revision to ensure fairness and due process for all parties involved.
STRATEGY
Section 727(2) of the Criminal Code of Canada is a powerful tool that prosecutors can use to seek higher punishment for repeat offenders. However, it is not without its strategic considerations. Here are some of the strategies that prosecutors and defense attorneys can employ when dealing with this section of the Criminal Code. Strategies for Prosecutors: 1. Timing: Prosecutors must carefully consider when to bring up the issue of previous convictions. If the offender is aware that their past convictions will be used against them, they may choose to plead guilty or not plead guilty. As such, prosecutors need to weigh this decision carefully to ensure that they don't inadvertently provide the offender with an advantage. 2. Evidence: Prosecutors must be prepared to bring forward evidence of the offender's past convictions. This may include obtaining court records, police records, or other official documents that prove the offender's previous convictions. These documents must be submitted to the court in a timely and organized manner, as the court may deny the application if the evidence is insufficient or not presented in a clear and concise manner. 3. Notification: Prosecutors are required to notify the offender of their intention to use Section 727(2) prior to the trial. This notification must be done in writing and must be provided up to 14 days before the trial. Prosecutors must ensure that this notification is accurate and complete, as any errors may allow the offender to challenge the application. Strategies for Defense Attorneys: 1. Challenge notification: Defense attorneys can challenge the prosecution's notification of their intention to use Section 727(2). This can be done if there are errors in the notification or if it was provided outside of the 14-day window. If successful, this challenge can weaken the prosecution's case, as they will not be able to use previous convictions to seek higher punishment. 2. Challenge evidence: Defense attorneys can also challenge the evidence of previous convictions. This can be done if the evidence is insufficient, improper, or obtained illegally. If successful, this challenge can weaken the prosecution's case, as they will not be able to use previous convictions to seek higher punishment. 3. Plea bargaining: Defense attorneys can negotiate with prosecutors to reach a plea bargain that avoids the use of Section 727(2). This can involve the offender taking responsibility for their actions and agreeing to a sentence without the use of previous convictions. This strategy can be effective if the offender's previous convictions are weak or if they have demonstrated a willingness to reform. Conclusion: Section 727(2) of the Criminal Code of Canada is a powerful tool that prosecutors can use to seek higher punishment for repeat offenders. However, its use is not without strategic considerations, and both prosecutors and defense attorneys must be prepared to apply various strategies to achieve their objectives. By carefully weighing the evidence and timing of their applications and using negotiation and challenges to their advantage, legal practitioners can effectively navigate this section of the Criminal Code.