INTRODUCTION AND BRIEF DESCRIPTION
This section determines the classification of a second or subsequent offense based on previous convictions for certain offenses, with a 10-year limit.
SECTION WORDING
244(3) In determining, for the purpose of paragraph (2)(a), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under this section; (b) an offence under subsection 85(1) or (2) or section 244.2; or (c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence. However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
EXPLANATION
Section 244(3) of the Criminal Code of Canada outlines the criteria for determining whether a convicted person is committing a second or subsequent offense. The section provides a list of offenses that qualify as an earlier offense, including offenses under this section, subsection 85(1) or (2), section 244.2, section 220, section 236, section 239, section 272, section 273, subsection 279(1), section 279.1, section 344 or section 346 if a firearm was used in the commission of the offense. If a convicted person has committed any of these offenses, they will be considered to have committed a second or subsequent offense if they commit another offense that falls under any of these categories. However, the section also includes a provision that an earlier offense will not be taken into account if at least 10 years have elapsed between the day on which the person was convicted of the earlier offense and the day on which the person was convicted of the offense for which sentence is being imposed, not taking into account any time in custody. This provision effectively means that if a person commits an offense after serving their sentence for a previous offense, and at least 10 years have elapsed since their previous offense, they will not be considered to have committed a second or subsequent offense under this section. Overall, Section 244(3) exists to ensure that individuals who have previously committed certain serious offenses are subject to harsher penalties if they commit another offense that falls under the same category. At the same time, the provision regarding elapsed time ensures that individuals who have served their sentence for a previous offense and maintained good behavior for 10 years or more are not unduly punished for their past actions.
COMMENTARY
Section 244(3) of the Criminal Code of Canada establishes the criteria for determining whether a convicted person has committed a second or subsequent offence for the purposes of paragraph (2)(a) of the same section. The considerations in this subsection are related to the offender's earlier convictions of certain enumerated offences, which are treated as earlier offences" for the purpose of calculating the offender's sentence. The subsection also specifies that an earlier offence cannot be taken into account if 10 years have elapsed between the offender's conviction for the earlier offence and the current sentence. The enumerated offences for which earlier convictions are to be considered include: (a) An offence under Section 244 - Conspiring to commit murder; (b) An offence under Subsections 85(1) or (2) or Section 244.2 - Weapons offences related to the commission of an offence under Section 244; (c) An offence under Sections 220, 236, 239, 272 or 273, Subsection 279(1) or Section 279.1, 344 or 346 if a firearm was used in the commission of the offence - Offences against the person involving violent acts with the use of a firearm. The purpose behind this subsection is to provide a mechanism for the courts to consider an offender's criminal history when determining an appropriate sentence for a current conviction. This subsection is particularly relevant in cases where an offender has a history of violent offences, as the use of firearms in the commission of violent crimes poses a significant threat to public safety. The provision also seeks to strike a balance between the importance of considering an offender's criminal history and the need to ensure that sentencing is fair and proportionate. By imposing a 10-year limit on the consideration of earlier convictions, the provision ensures that an offender is not unfairly penalized for crimes committed in the distant past. This also takes into account the possibility of an offender having worked to turn their life around and rehabilitate themselves. In light of the provision's focus on ensuring that sentences are proportional and appropriate, courts have been careful to ensure that it is applied in a manner that is consistent with the principles of sentencing in Canada. These principles require that sentences be proportionate to the gravity of the offence and the degree of responsibility of the offender, while also taking into account the offender's past conduct, rehabilitative prospects and other relevant factors. Overall, Section 244(3) is an important provision that allows the courts to take into account an offender's criminal history when determining appropriate sentences. However, it is important that this provision is applied in a manner that is consistent with the principles of sentencing and takes into account all relevant factors.
STRATEGY
Section 244(3) of the Criminal Code of Canada is a crucial provision in determining whether a convicted person has committed a second or subsequent offence. This provision considers specific offences committed by the convicted person as an earlier offence and stipulates that a previous offence shall not be taken into account if ten years have elapsed between the date of the earlier conviction and the date of the offence for which sentence is being imposed. Several strategic considerations must be put into place when dealing with Section 244(3) of the Criminal Code. One of the most effective strategies is to have a thorough understanding of the provision's requirements and exemptions. This knowledge will enable a defence lawyer to analyze the evidence and circumstances of the case and determine whether the prosecution's account of previous convictions is accurate. If there is any doubt, the defence lawyer must conduct a detailed inquiry into the particulars of the previous offence, especially the nature of the charge and the date of the conviction. Another significant consideration in dealing with this section of the Criminal Code is to provide a compelling counter-argument that the previous conviction should not be considered as an earlier offence. Defence lawyers must carefully assess the specific conditions outlined in the provision and determine whether there are compelling reasons for exemption. For instance, a defence lawyer may argue that the previous conviction does not meet the criteria outlined in the section or that new evidence has come to light since the date of the previous conviction, which could significantly impact the current case. Another crucial strategy would be to negotiate a plea bargain to minimize the charges and mitigate potential sentencing. Under Section 244(3) of the Criminal Code, the judge may impose a more severe sentence, such as a longer period of imprisonment, for an offender who has committed a second or subsequent offence. By negotiating a plea bargain, the defence may convince the prosecution to reduce the charges to a first-time offence, thereby avoiding a more significant sentence. In conclusion, Section 244(3) of the Criminal Code of Canada is a significant provision that requires careful consideration and strategic analysis when dealing with multiple convictions. Defence lawyers must have a thorough understanding of the requirements and exemptions provided under this section to build a strong defence argument. Employing various strategies such as gathering evidence and negotiating plea bargains are critical components in mitigating sentence outcomes for convicted persons. Ultimately, legal representatives must use all available resources and legal knowledge to ensure that the convicted person secures a fair and just outcome during sentencing.