section 742.6(2)

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the release from custody of an offender who has allegedly breached a condition of a conditional sentence order.

SECTION WORDING

742.6(2) For the purpose of the application of section 515, the release from custody of an offender who is detained on the basis of an alleged breach of a condition of a conditional sentence order shall be governed by subsection 515(6).

EXPLANATION

Section 742.6(2) of the Criminal Code of Canada specifies the conditions for the release of an offender who has been detained on the basis of an alleged breach of a condition of a conditional sentence order. This section is related to section 515 of the Criminal Code of Canada, which deals with the release of an arrested person. When an offender is granted a conditional sentence order, they are given a suspended sentence, which means that they are allowed to serve their sentence outside of jail, but with certain conditions. These conditions may include things like attending counseling, performing community service, or adhering to a curfew. If these conditions are not met, the offender could be detained. In such cases, the release of the offender from custody would be governed by subsection 515(6) of the Criminal Code of Canada. This subsection sets out the criteria that must be considered before an accused person can be granted bail, such as the likelihood of the accused appearing for trial, the protection of the public, and maintaining confidence in the justice system. Section 742.6(2) makes it clear that these considerations are also relevant when determining whether to release an offender who has allegedly breached a condition of their conditional sentence order. The court may consider whether the offender is likely to appear for future court appearances, whether the public is at risk if they are released, and whether the justice system's integrity would be maintained by releasing the offender. In conclusion, section 742.6(2) provides clarity on the application of section 515 in cases where an offender has allegedly breached a condition of their conditional sentence order. It ensures that the same criteria are applied in determining whether to release an offender in these cases, as in other cases where an accused person has been arrested.

COMMENTARY

Section 742.6(2) of the Criminal Code of Canada outlines the procedure for the release of an offender who has been detained due to an alleged violation of a condition of a conditional sentence order. It states that such a release shall be governed by subsection 515(6) of the Criminal Code, which deals with the release of accused persons pending trial. This section is significant because it lays down a specific framework for the release of offenders who are serving a conditional sentence. A conditional sentence is a non-custodial sentence that is served in the community, subject to certain conditions such as curfews, drug testing, and community service. If an offender violates any of these conditions, they can be brought back into custody. The purpose of this section is to ensure that the release of an offender who has violated the conditions of a conditional sentence is governed by the same principles as the release of an accused person pending trial. This means that the decision to release or detain the offender will be based on factors such as the likelihood of them fleeing or reoffending, the need to protect the public, and the seriousness of the alleged breach. The use of subsection 515(6) to govern the release of offenders serving a conditional sentence is significant because it ensures that the same legal principles are applied in both cases. Subsection 515(6) sets out four statutory grounds for detention pending trial, including the likelihood of the accused failing to attend court, the risk of the accused committing a further offence, the need to protect the public, and the seriousness of the alleged offence. These grounds are intended to strike a balance between the rights of the accused and the protection of society, and they reflect the fact that detention should be the exception rather than the rule. By applying these same principles to the release of offenders in breach of a conditional sentence, section 742.6(2) ensures that their rights are protected while also ensuring that the public is not put at risk. This is important because the violation of a condition of a conditional sentence order indicates that the offender has not respected the terms of their release and may pose a risk to society. In addition, section 742.6(2) also highlights the importance of ensuring that offenders are held accountable for their actions even when they are serving a non-custodial sentence. The fact that there are consequences for violating the conditions of a conditional sentence order reinforces the principle that offenders are responsible for their actions and will be held accountable for them. In conclusion, section 742.6(2) is an important provision of the Criminal Code of Canada because it sets out a specific framework for the release of offenders who have violated the conditions of a conditional sentence order. By applying the same legal principles as those used for the release of accused persons pending trial, the section ensures that the rights of offenders are protected while also ensuring that the public is not put at risk. It also reinforces the principle of accountability for offenders, even when they are serving a non-custodial sentence.

STRATEGY

Section 742.6(2) of the Criminal Code of Canada is a critical provision that every criminal defense lawyer should be aware of when defending a client who has been accused of breaching a condition of a conditional sentence order. This section deals with the release from custody of an offender who is detained on the basis of an alleged breach of a conditional sentence order and provides guidance on how such a release can be attained in accordance with section 515 of the Criminal Code. When dealing with this section, there are several strategic considerations that criminal defense lawyers must keep in mind. Firstly, they must assess the severity of the breach and determine if there are any mitigating factors that could help their client's case. For instance, if the breach was a minor one, the court may be more lenient in its assessment of the case and may release the offender on less onerous conditions. Another critical consideration is whether the breach was intentional or unintentional. If the offender had no intention of breaching the condition of the sentence but did so accidentally, then this could be a vital factor to consider in the bail application. The lawyer may need to provide evidence to show that their client had no intention of breaching and that it was merely a mistake. More so, a criminal defense lawyer must also prepare a strong bail application that highlights the relevant factors that would support the client's release. This requires the lawyer to have a solid understanding of what the court considers when granting bail and what factors are relevant in a breach of a conditional sentence order case. Another strategic consideration is to develop a compelling narrative that will persuade the court to grant the client's release. The lawyer must present their client's case in a manner that is both factual and emotional, highlighting how their client's continued detention would be detrimental to their well-being and that of their loved ones. Furthermore, the lawyer may need to coordinate with other professionals, including mental health professionals and social workers, to provide relevant reports that can support the client's release and demonstrate that they are not a danger to society. In conclusion, successfully navigating section 742.6(2) of the Criminal Code requires careful analysis, strategic thinking, and effective advocacy. By following the right strategies, a criminal defense lawyer can increase the chances of their client being released from custody in a breach of a conditional sentence order case.