INTRODUCTION AND BRIEF DESCRIPTION
A condition of a conditional sentence order does not impact the operation of sections 109 or 110.
SECTION WORDING
742.2(2) For greater certainty, a condition of a conditional sentence order referred to in paragraph 742.3(2)(b) does not affect the operation of section 109 or 110.
EXPLANATION
Section 742.2(2) of the Criminal Code of Canada is a provision that clarifies the scope of conditional sentences. A conditional sentence is a sentence that allows an offender to serve their sentence in the community under certain conditions, rather than being incarcerated in a correctional facility. These conditions generally include requirements to report to a probation officer, to remain within a specific geographical area, and to participate in certain programs or activities. Paragraph 742.3(2)(b) of the Criminal Code sets out the types of conditions that may be included in a conditional sentence order. This provision allows a judge to impose any conditions that they consider necessary to protect the public, rehabilitate the offender, or promote their reintegration into society. However, Section 742.2(2) clarifies that these conditions do not override the operation of sections 109 or 110 of the Criminal Code. These sections deal with the consequences of a subsequent criminal conviction while a person is serving a conditional sentence. Section 109 provides that a person who commits an offence punishable by imprisonment while they are serving a conditional sentence will be sentenced to serve the remainder of their sentence in a correctional facility. Section 110 provides that a person who is convicted of a subsequent offence while serving a conditional sentence will be sentenced to serve the remainder of their sentence in a correctional facility, plus any additional time imposed for the new offence. In other words, Section 742.2(2) ensures that the consequences of a subsequent conviction remain in force, regardless of the conditions of the original conditional sentence order. This provision serves to maintain the integrity of the criminal justice system and protect public safety by deterring offenders from committing further crimes while they are serving a conditional sentence.
COMMENTARY
Section 742.2(2) of the Criminal Code of Canada provides clarity on the application of conditional sentence orders (CSOs) in relation to certain sections of the Criminal Code. Specifically, it specifies that the conditions outlined in a CSO - which are meant to serve as a less severe alternative to traditional incarceration - do not override the application of sections 109 or 110 of the Criminal Code. Section 109 of the Criminal Code pertains to the sentencing of offenders who commit an offence while subject to a probation order, conditional sentence, or parole. This provision allows for the imposition of a consecutive sentence in addition to any existing sentence, in order to address the breach of trust involved in reoffending while under community supervision. Section 110, meanwhile, pertains to the sentencing of offenders who commit an offence while serving a sentence for another offence. In cases where a person has been convicted of multiple offences, section 110 allows for these sentences to be served either concurrently or consecutively, depending on the circumstances of the case. The inclusion of section 742.2(2) in the Criminal Code serves to clarify that the conditions outlined in a CSO - such as requiring the offender to adhere to a curfew or attend counseling sessions - do not affect the application of these provisions. In other words, if an offender who has been sentenced to a CSO commits a new offence while under its terms, they may still be subject to additional sentencing under section 109 or 110, as appropriate. This provision is important for a couple of reasons. First, it ensures that offenders are held accountable for their actions, even when they are serving a CSO instead of traditional imprisonment. This helps to maintain public confidence in the justice system, as it demonstrates that individuals who break the law will face appropriate consequences. At the same time, however, it is also important to recognize that CSOs exist as an alternative to traditional incarceration precisely because they are seen as less punitive and more oriented towards rehabilitation. In some cases, an offender who violates the conditions of their CSO may be able to address the underlying issues that led to their reoffending through additional counseling or other interventions. In other cases, however, the breach of trust involved in reoffending while under community supervision may warrant additional sentencing. Ultimately, the inclusion of section 742.2(2) in the Criminal Code strikes a balance between these two competing concerns. By acknowledging that a CSO does not preclude the application of sections 109 or 110 of the Criminal Code, it ensures that offenders who commit new offences are still held accountable for their actions, while also recognizing that CSOs can be an effective way of addressing underlying issues and reducing recidivism in some cases.
STRATEGY
Section 742.2(2) of the Criminal Code of Canada is an important provision, particularly for individuals who are facing the possibility of a conditional sentence order. Essentially, this provision clarifies that a condition of a conditional sentence order does not override or affect the application of section 109 or 110 of the Criminal Code. These sections relate to mandatory minimum sentences for certain offences and can significantly impact an individual's sentence. Given the potential impact of section 109 and 110 in certain cases, it is important for criminal defence lawyers to carefully consider how to approach this provision when crafting a defence strategy. Some possible strategies to consider include: 1. Negotiating a plea bargain: In some cases, it may be possible to negotiate a plea bargain with the Crown that avoids the application of section 109 or 110 of the Criminal Code. This could involve agreeing to plead guilty to a lesser offence that does not carry a mandatory minimum sentence or negotiating with the Crown to have certain charges dropped. 2. Challenging the constitutionality of section 109 or 110: In some cases, it might be possible to argue that section 109 or 110 of the Criminal Code is unconstitutional. This could involve arguing that the mandatory minimum sentence is cruel and unusual punishment or infringes upon an individual's Charter rights. However, successfully challenging the constitutionality of these provisions can be difficult and requires a strong legal argument. 3. Crafting a creative sentence: Another strategy could be to craft a creative sentence that meets the goals of sentencing while avoiding the application of section 109 or 110. This could involve proposing alternative forms of punishment, such as community service or restorative justice, that do not trigger the mandatory minimum sentence provisions. 4. Seeking a conditional sentence order: While section 742.2(2) indicates that a condition of a conditional sentence order does not affect the operation of section 109 or 110, it is still possible to seek a conditional sentence order in cases where these provisions might otherwise apply. A conditional sentence order allows an individual to serve their sentence in the community under certain conditions and can be a preferable alternative to a jail term. Overall, it is important for criminal defence lawyers to carefully consider the potential impact of section 109 or 110 of the Criminal Code when crafting a defence strategy for their clients. Different strategies may be appropriate depending on the particular facts of the case, and it is essential to work closely with the client to determine the best approach. Ultimately, the goal is to achieve the best possible result for the client while navigating the complex provisions of the Criminal Code.