INTRODUCTION AND BRIEF DESCRIPTION
This section allows sentences imposed by the court of appeal to be deemed as already being served from the time of conviction.
SECTION WORDING
759(6) Notwithstanding subsection 719(1), a sentence imposed on an offender by the court of appeal pursuant to this section shall be deemed to have commenced when the offender was sentenced by the court by which he was convicted.
EXPLANATION
Section 759(6) of the Criminal Code of Canada provides a unique provision for imposing sentences on convicted offenders who have appealed to higher courts. Typically, under subsection 719(1), a sentence is deemed to have begun on the day it is pronounced in court or on a later date specified by the court. However, this provision does not apply to an offender whose sentence is imposed by the court of appeal under Section 759 of the Criminal Code. Section 759 empowers the court of appeal to substitute a different sentence than the one imposed by the lower court on conviction. The court of appeal may consider different factors such as the offender's character, the gravity and nature of the offense, the age and circumstances of the offender, and the interests of the society in arriving at a different sentence. The significance of subsection (6) is that the sentence imposed by the court of appeal under Section 759 is deemed to have begun on the date when the offender was initially sentenced by the lower court. This ensures that an offender does not benefit from a reduced sentence due to the delays in the appeal process. The provision serves an important purpose in maintaining the integrity of the sentencing process and providing clarity on the commencement of a sentence. In summary, Section 759(6) of the Criminal Code ensures that offenders who have appealed to higher courts do not evade the appropriate consequences of their actions by attributing a later date to the start of their sentence. By ensuring that a sentence imposed by the court of appeal begins on the date of the original sentencing, this provision ensures fairness in the justice system.
COMMENTARY
Section 759(6) of the Criminal Code of Canada, despite being a short and concise provision, appears to be a significant one. This section, in essence, allows for a sentence imposed on an offender by the court of appeal, under a particular provision of the Code, to be deemed to have commenced when the offender was sentenced by the court by which they were convicted. This provision appears to have been added to address a specific issue that arises in cases where an offender is granted leave to appeal their conviction or sentence, and their appeal is successful. In such cases, the Court of Appeal would typically have to impose a new sentence on the offender. However, the question of when that sentence should commence arises, and this can have implications for the amount of time an offender serves in custody, or on parole. By deeming that the sentence imposed on an offender by the Court of Appeal commences when the offender was sentenced by the court by which they were convicted, this provision seeks to avoid any ambiguity and ensure that the offender serves the appropriate amount of time in custody. This means that an offender who has been granted leave to appeal, and whose appeal is successful, does not get a "credit" for the time they may have spent in custody awaiting the outcome of their appeal. While it is challenging to determine the exact intentions of the legislatures behind this provision, it appears that one of the main purposes is to ensure that the sentence imposed on an offender by the court of appeal is consistent with the original sentence handed down by the trial judge. By deeming the sentence to have commenced at the time of conviction, the court of appeal is essentially bound by the sentence already imposed. Furthermore, this provision could be viewed as a way of streamlining the sentencing process and preventing delays in the administration of justice. By deeming the sentence to have already commenced, the Court of Appeal can quickly proceed to impose an appropriate sentence, without the need for further time-consuming hearings to determine when the sentence should commence. Overall, while section 759(6) may seem like a minor provision, it plays a crucial role in ensuring clarity and consistency in the sentencing process. It may also help reduce delays in the administration of justice and ensure that offenders are appropriately punished for their crimes.
STRATEGY
Section 759(6) of the Criminal Code of Canada is an essential provision that both defence and prosecution sides should consider when dealing with an appeal case. The provision addresses the issue of sentence commencement, which can significantly affect the defendant's time in custody and parole eligibility. Therefore, strategic considerations for both sides are crucial in navigating the legal terrain concerning this section. One strategy to consider when dealing with this provision is pleading guilty at the earliest possible stage. When a defendant pleads guilty, they accept responsibility for the criminal charges and waive their right to a trial. In return, the prosecution is more likely to offer a plea deal, which often results in a lesser sentence than they would receive if found guilty after a full trial. Also, by pleading guilty at an early stage, the defendant may receive credit for time served in custody and, in some cases, be eligible for early parole. Another strategic consideration is to identify any procedural errors that may have occurred during the trial. Procedural errors can include errors in evidence presentation, errors in jury selection, or mistakes by the judge or prosecuting attorney. If a procedural error is identified, the appellant may argue that their conviction was unfair and ask the court of appeal to set aside the sentence imposed. The third strategy is to carefully consider the sentence imposed by the trial court and decide if it is appropriate. Factors that may influence the sentencing decision include the nature and gravity of the offence, the offender's culpability, the offender's prior criminal record, the offender's personal circumstances, and the impact on the victim and community. If the appellant feels that the sentence imposed is too harsh or lenient, they may appeal the sentence and ask the court of appeal to impose a more suitable sentence. Another strategic consideration is to carefully review the language of Section 759(6) of the Criminal Code of Canada and to ensure that the sentence imposed by the court of appeal is appropriately credited to the offender. According to the provision, the sentence imposed by the court of appeal is deemed to have commenced on the day the offender was sentenced by the court of original conviction. Therefore, the defendant's time already spent in custody will count towards their sentence, and it will also affect their parole eligibility. The final strategy is to consider the impact of public opinion on the case. In many high-profile cases, public opinion can be a significant factor in the outcome of the appeal. If the appellant can generate public support for their case, it may influence the court's decision in their favour. Therefore, it is essential to provide the media with accurate information about the case and to engage with the public via social media and other platforms. In conclusion, dealing with Section 759(6) of the Criminal Code of Canada requires a multifaceted approach that takes into account several strategic considerations. By carefully reviewing the sentence imposed by the trial court, identifying any procedural errors, and considering the impact of public opinion, both defence and prosecution lawyers can strategically navigate the appeal process and achieve the best possible outcome for their clients in challenging circumstances.