INTRODUCTION AND BRIEF DESCRIPTION
Section 752 of the Criminal Code of Canada defines and includes a list of designated offences for the purpose of Part XXIV of the code, including sexual offences, assault, robbery, and trafficking.
SECTION WORDING
752 In this Part, "designated offence" means (a) a primary designated offence, (b) an offence under any of the following provisions: (i) paragraph 81(1)(a) (using explosives), (ii) paragraph 81(1)(b) (using explosives), (iii) section 85 (using firearm or imitation firearm in commission of offence), (iv) section 87 (pointing firearm), (iv.1) section 98 (breaking and entering to steal firearm), (iv.2) section 98.1 (robbery to steal firearm), (v) section 153.1 (sexual exploitation of person with disability), (vi) section 163.1 (child pornography), (vii) section 170 (parent or guardian procuring sexual activity), (viii) section 171 (householder permitting sexual activity by or in presence of child), (ix) section 172.1 (luring child), (ix.1) section 172.2 (agreement or arrangement — sexual offence against child), (x) subsection 212(1) (procuring), (x.1) subsection 212(2) (living on avails of prostitution of person under eighteen), (xi) subsection 212(2.1) (aggravated offence in relation to living on avails of prostitution of person under 18), (xii) subsection 212(4) (prostitution of person under 18), (xiii) section 245 (administering noxious thing), (xiv) section 266 (assault), (xv) section 269 (unlawfully causing bodily harm), (xvi) section 269.1 (torture), (xvii) paragraph 270(1)(a) (assaulting peace officer), (xviii) section 273.3 (removal of child from Canada), (xix) subsection 279(2) (forcible confinement), (xx) section 279.01 (trafficking in persons), (xx.1) section 279.011 (trafficking of a person under the age of eighteen years), (xxi) section 279.1 (hostage taking), (xxii) section 280 (abduction of person under age of 16), (xxiii) section 281 (abduction of person under age of 14), (xxiv) section 344 (robbery), and (xxv) section 348 (breaking and entering with intent, committing offence or breaking out), (c) an offence under any of the following provisions of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as they read from time to time before January 1, 1988: (i) subsection 146(2) (sexual intercourse with female between ages of 14 and 16), (ii) section 148 (sexual intercourse with feeble-minded), (iii) section 166 (parent or guardian procuring defilement), and (iv) section 167 (householder permitting defilement), or (d) an attempt or conspiracy to commit an offence referred to in paragraph (b) or (c).
EXPLANATION
Section 752 of the Criminal Code of Canada defines the term "designated offence" for the purposes of Part XXIV of the Code, which deals with the high-risk accused and the long-term supervision of offenders. A "designated offence" includes primary designated offences, such as murder, manslaughter, and treason, as well as a range of other serious crimes, such as sexual offences against children, prostitution-related offences, offences involving firearms, and certain types of assault, robbery, and breaking and entering. The section also includes attempts or conspiracies to commit any of these offences, as well as certain historical offences under the pre-1988 version of the Criminal Code. Importantly, the designation of an offence as a "designated offence" has significant implications for the sentencing and supervision of offenders. Part XXIV of the Code provides for the detention of high-risk accused persons pending trial, as well as the imposition of long-term supervision orders for certain offenders who are deemed to pose a significant risk to society. To be subject to these provisions, an offender must have been convicted of a designated offence or found not criminally responsible by reason of mental disorder for a designated offence. In some cases, the designation of an offence as "primary" or "secondary" may determine the length of time an offender is subject to supervision or detention. Overall, section 752 serves to clarify the scope of the provisions under Part XXIV of the Criminal Code of Canada and to ensure that serious offences are appropriately identified and addressed in the criminal justice system.
COMMENTARY
Section 752 of the Criminal Code of Canada defines what constitutes a designated offence" for the purposes of Part XXIV of the Code, which deals with dangerous offenders". This section of the Code sets out a list of offences that fall under the category of designated offences", which are considered to be particularly egregious and/or violent crimes. These offences include sexual exploitation of vulnerable persons, child pornography, assault, and robbery, among others. The designation of certain offences as designated" is important because it triggers certain provisions of the Criminal Code that are intended to protect the public from individuals who pose a high risk of committing further serious crimes. For example, if an individual is convicted of a designated offence and the court determines that they are a dangerous offender", they may be subject to an indeterminate sentence - that is, a sentence that does not have a fixed term and is intended to keep the offender incarcerated until they are no longer considered to be a threat to the public. In addition, individuals who have been designated as dangerous offenders may be subject to more stringent release conditions or restrictions on their movements in the community. The list of designated offences in Section 752 is not exhaustive, and the authorities have the power to designate other offences as primary designated offences" under the Code. For example, Section 753(1) gives the Governor in Council the power to make regulations designating other offences as primary designated offences based on factors such as the nature and seriousness of the offence, the harm caused to the victim, and the frequency or persistence of the offender's criminal behaviour. Overall, the designation of certain offences as designated" is an important feature of Canada's criminal justice system, as it allows for greater protection of the public from individuals who have been deemed to pose a high risk of committing further serious offences. By providing a clear list of offences that fall under this category, Section 752 of the Criminal Code helps to ensure that dangerous offenders are subject to appropriate measures to manage their risk to society.
STRATEGY
Section 752 of the Criminal Code of Canada deals with the designation of certain offences as designated offences" for the purpose of determining certain rights and procedures under the Code. The designation of an offence as a designated offence" has significant implications for the accused because it triggers the automatic denial of bail or has an impact on parole eligibility. Therefore, it is important to consider some strategic considerations when dealing with this section. One strategic consideration is to challenge the constitutionality of this provision. The designation of an offence as a designated offence" has a significant impact on an accused's right to liberty and presumption of innocence. The Supreme Court of Canada has recognized that the denial of bail or the imposition of release conditions creates a significant burden on the liberty of the accused. Therefore, a challenge to the provision could argue that it violates the rights guaranteed by the Canadian Charter of Rights and Freedoms. Another strategic consideration is to challenge the designation of the offence as a designated offence." The Crown has the burden to prove that the offence meets the criteria set out in section 752. Therefore, the defence can challenge the designation if there is evidence that the criteria are not met. The defence can argue that the offence does not pose a risk to the public or that there are exceptional circumstances that warrant bail or reduced sentence. A third strategic consideration is to negotiate a plea deal with the Crown. The designation of an offence as a designated offence" can have severe consequences for the accused. Therefore, the defence may consider negotiating a plea deal with the Crown to avoid the automatic denial of bail or to reduce the sentence. The plea deal may involve pleading guilty to a lesser charge or agreeing to certain conditions in exchange for a reduced sentence or bail release. In conclusion, section 752 of the Criminal Code of Canada has significant implications for the accused and their legal rights. Therefore, it is important to consider strategic considerations when dealing with this section, including challenging the constitutionality of the provision, challenging the designation of the offence, or negotiating a plea deal with the Crown.