INTRODUCTION AND BRIEF DESCRIPTION
The sentence of imprisonment for life prescribed by section 235(2) is a minimum punishment.
SECTION WORDING
235(2) For the purposes of Part XXIII, the sentence of imprisonment for life prescribed by this section is a minimum punishment.
EXPLANATION
Section 235(2) of the Criminal Code of Canada pertains to the imposition of life imprisonment as a minimum punishment for certain offences included in Part XXIII of the Code. This section serves as a significant deterrent in the criminal justice system, for it demands accountability and punishment for the most severe offences. The Criminal Code of Canada provides for a range of offences that can allegedly warrant the imposition of a life sentence. These include murder, treason, and high treason, among others. In such cases, where the judiciary deems it appropriate, the accused may be sentenced to life imprisonment. The critical aspect of this provision is that it mandates life imprisonment as the minimum punishment, giving judicial discretion to impose harsher sentences, as the situation warrants. The court must consider various factors when determining whether the sentence of life imprisonment is an appropriate response to the crime in question. These may include the gravity of the offence, the offender's prior criminal record, and the impact of the crime on the victim(s) and their families. The court must also decide if a life sentence would serve as an adequate deterrent and if rehabilitation is possible. In summary, Section 235(2) is an essential provision of the Criminal Code of Canada, as it establishes a minimum punishment for the most serious offences. This provision ensures that perpetrators of heinous crimes are held accountable for their actions while playing an important role in deterring other offenders from committing similar crimes.
COMMENTARY
Section 235(2) of the Criminal Code of Canada has been subject to much debate as to whether it serves as a deterrent, a fitting punishment, or an arbitrary sentencing practice. This provision serves to impose a minimum sentence of life imprisonment for certain offences, but it also raises questions about proportionality, rehabilitation, and retribution in Canadian criminal justice. Part XXIII, which deals with sentencing, sets out punishment options for various offences, including life imprisonment for some of the most heinous crimes, such as first-degree murder, treason, and high treason. Section 235(2) states that the life sentence is the minimum punishment, meaning that the offender will not be eligible for parole until serving at least 25 years in prison. This provision aims to emphasize the gravity of the offence and express society's denunciation of the offender's conduct. On the one hand, proponents of section 235(2) argue that it serves as a significant deterrent to future offenders who may be considering engaging in similar activities. They contend that since an offender will face a minimum of 25 years in prison, it may serve as a sufficient disincentive for would-be criminals. For example, if someone is considering killing or betraying their country, they are likely to think twice before engaging in such behaviour due to the severity of the penalty. On the other hand, critics argue that section 235(2) does not adequately reflect the principles of sentencing in Canada. They argue that this provision does not emphasize rehabilitation, reparation, or restorative justice, which are at the centre of Canadian criminal justice. They further argue that mandatory minimums tend to be arbitrary and lack proportionality. For instance, a person who committed a serious crime as a teenager, but has since reformed, may be subject to life imprisonment, regardless of their efforts to turn their life around. In such cases, section 235(2) would appear to overlook the rehabilitative aspect of the sentence. In addition, mandatory minimums have historically been shown to disproportionately target marginalized populations, such as Indigenous Canadians and people of colour. A mandatory minimum sentence for life imprisonment can perpetuate systemic discrimination in the criminal justice system and contribute to over-criminalization and over-incarceration, further entrenching cycles of poverty and inequality. In conclusion, section 235(2) raises important questions and considerations when it comes to the purposes and principles of sentencing in Canada. While it may be an effective deterrent, the provision's mandatory minimum nature may overlook the individual circumstances of the offender and may perpetuate systemic discrimination. It is incumbent on lawmakers to consider alternative, evidence-based approaches to sentencing that balance all of the principles of Canadian criminal justice. Only then can the justice system ensure that all offenders are held accountable for their actions, but also receive a punishment that aligns with the principles of proportionality, rehabilitation, and restorative justice.
STRATEGY
Section 235(2) of the Criminal Code of Canada is often referred to as the "life means life" provision. It states that when an individual is convicted of first-degree murder, the sentence of imprisonment for life is a minimum punishment. This means that once convicted, the individual must serve their entire life in prison, without the possibility of parole. Dealing with Section 235(2) is a significant legal challenge for defense lawyers, as it eliminates the possibility of plea bargaining or negotiating a lighter sentence. As a result, defense lawyers need to approach these cases strategically to ensure the best possible outcome for their clients. Here are some of the strategic considerations and strategies that could be employed: 1. Proving Mental Illness or Disability One strategy for defense lawyers is to prove that their client has a mental illness or disability that could have affected their judgment or ability to understand the consequences of their actions. In some cases, defendants with mental illnesses may be found not criminally responsible for their actions, which could lead to a different sentencing outcome. 2. Challenging the Constitutionality of Section 235(2) Another strategy for defense lawyers is to challenge the constitutionality of Section 235(2), arguing that it violates the Charter of Rights and Freedoms. However, challenging the constitutionality of a provision of the Criminal Code is a difficult and time-consuming process that requires substantial legal resources. 3. Negotiating a Guilty Plea to a Lesser Charge While the "life means life" provision only applies to first-degree murder convictions, defense lawyers may try to negotiate a guilty plea to a lesser charge to avoid a longer sentence. 4. Presenting Mitigating Factors Even if a defendant is convicted of first-degree murder and subject to the minimum sentence of life in prison, defense lawyers can still present mitigating factors to the judge. These factors could include a difficult childhood, a history of abuse, or a lack of prior criminal activity. 5. Seeking a Presidential Pardon or Clemency In rare circumstances, defense lawyers may seek a presidential pardon or clemency for their clients. However, this process is also difficult and requires significant political connections and advocacy efforts. In conclusion, dealing with Section 235(2) of the Criminal Code of Canada is a significant legal challenge for defense lawyers. Possible strategic considerations and strategies include proving mental illness or disability, challenging the constitutionality of the provision, negotiating a guilty plea to a lesser charge, presenting mitigating factors, and seeking a presidential pardon or clemency. Ultimately, the success of these strategies depends on the individual circumstances of the case and the resources available to the defense team.