Criminal Code of Canada - section 753(2) - Time for making application

section 753(2)

INTRODUCTION AND BRIEF DESCRIPTION

An application for a court to make an order under section 752.1 must be made before sentence is imposed, unless new relevant evidence becomes available within six months of the sentence being imposed.

SECTION WORDING

753(2) An application under subsection (1) must be made before sentence is imposed on the offender unless (a) before the imposition of sentence, the prosecutor gives notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition; and (b) at the time of the application under subsection (1) that is not later than six months after the imposition of sentence, it is shown that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim.

EXPLANATION

Section 753(2) of the Criminal Code of Canada outlines the requirements for making an application for a discharge under section 752.1. In order to apply for a discharge, the application must be made before a sentence is imposed on the offender, unless the prosecutor gives notice of a possible intention to make an application under section 752.1 and an application under subsection (1) is made within six months after the imposition of sentence. Additionally, if relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence becomes available in the interim, an application under subsection (1) can still be made within six months of the imposition of sentence. This provision allows for potentially exculpatory evidence to be considered in the decision to grant a discharge. A discharge under section 752.1 allows an offender to avoid a criminal record even if they have been found guilty. The discharge is made at the discretion of the court and depends on factors such as the nature of the offence, the offender's character, and the impact of a criminal record on the offender's ability to rehabilitate and reintegrate into society. In summary, section 753(2) provides guidelines for the timing and evidence requirements for making an application for a discharge under section 752.1 of the Criminal Code of Canada. The purpose of the section is to ensure that all relevant evidence is considered in the decision to grant a discharge, while also respecting the need for timely resolution of criminal proceedings.

COMMENTARY

Section 753(2) of the Criminal Code of Canada is a provision that sets out the conditions under which an application for a conditional sentence can be made. An application for a conditional sentence is a request to the court to impose a sentence that allows the offender to serve their sentence in the community, rather than in jail. The purpose of this provision is to ensure that the offender does not abuse the system by making an application after receiving a sentence. The first condition that must be met under subsection (2) is that the application must be made before the sentence is imposed on the offender. This means that the offender cannot wait until they have been sentenced to jail before making an application for a conditional sentence. This condition is important because it prevents the offender from taking advantage of the system by using the application as a way to avoid jail time. The second condition relates to the notice that the prosecutor must give to the offender. The prosecutor must give notice to the offender of a possible intention to make an application under section 752.1 and an application under subsection (1) not later than six months after that imposition. This means that the prosecutor must inform the offender that they may make an application for a conditional sentence before the sentence is imposed on them. This notice serves as a warning to the offender that they will not be able to use the application as a way to avoid jail time. The third condition is that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence became available in the interim. This means that the offender must show that new evidence has come to light since the sentence was imposed, and that this evidence was not available to the prosecutor at the time of the sentence. This is an important condition because it ensures that the offender cannot use the application as a way to get a second chance to present evidence that they could have presented at the time of sentencing. Overall, section 753(2) of the Criminal Code of Canada sets out the conditions that must be met for an offender to make an application for a conditional sentence. These conditions are important because they ensure that the application process is not abused, and that the offender cannot use the application as a way to avoid jail time. By setting out these conditions, the provision demonstrates the importance of accountability in the justice system, and the need to balance the interests of the offender with the interests of society.

STRATEGY

Section 753(2) of the Criminal Code of Canada outlines the conditions under which an offender can apply for a review of their sentence. There are several strategic considerations that must be taken into account when dealing with this section of the Criminal Code, including the timing of the application, the availability of relevant evidence, and the potential impact on the offender's future prospects. One strategy that could be employed is to carefully time the application for review. Under subsection (2)(a), an application must be made before sentence is imposed on the offender, unless the prosecutor provides notice of a potential application under section 752.1 and an application is made within six months after the imposition of sentence. This means that if an offender is considering seeking a review of their sentence, they should act quickly to ensure that they meet the required timeline. Additionally, if the prosecutor provides notice of a potential application under section 752.1, the offender may want to consider submitting their own review application within the six-month window to ensure they do not miss their opportunity. Another consideration is the availability of relevant evidence. Under subsection (2)(b), an application under subsection (1) that is made within six months after the imposition of sentence must show that relevant evidence that was not reasonably available to the prosecutor at the time of the imposition of sentence has become available in the interim. If an offender is considering seeking a review of their sentence, they should carefully examine any potential sources of new evidence that may be available to them, such as witness statements or medical reports. A third consideration is the potential impact on the offender's future prospects. In some cases, a successful application for a review of a sentence may result in a reduction of the offender's sentence or in a different sentence being imposed. While this may be beneficial in the short term, it could also have lasting consequences for the offender's future, such as limiting their employment or travel opportunities. For this reason, offenders should carefully weigh the potential benefits and drawbacks of seeking a review of their sentence before proceeding. Overall, the key strategic considerations when dealing with Section 753(2) of the Criminal Code of Canada revolve around timing, evidence, and potential consequences. By carefully weighing these factors and employing appropriate strategies, offenders can make informed decisions about whether to seek a review of their sentence.