section 272(3)

INTRODUCTION AND BRIEF DESCRIPTION

This section determines whether a person is committing a second or subsequent offense based on prior convictions for certain offenses, with a disregard for past convictions more than ten years old (not taking into account any time in custody).

SECTION WORDING

272(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 or 244.2; or (c) an offence under section 220, 236, 239 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 272(3) of the Criminal Code of Canada outlines the criteria for determining whether an individual has committed a second or subsequent offence under the provisions outlined in paragraph 2(a) of the section. The provision notes that if the convicted individual had previously committed an offence under section 272, subsections 85(1) or (2), section 244 or 244.2, or a listed offence involving the use of a firearm, then this earlier offence will be considered as the individual's earlier offence. However, the clause also notes that an earlier offence will not be taken into account if ten years have passed since the individual's conviction for the prior offence. This time frame does not consider any time an individual may have served in custody for the prior conviction, solely measuring ten years from the date of the earlier conviction to the date of the current conviction being sentenced. Overall, this section of the Criminal Code of Canada is designed to ensure that individuals who have committed multiple offences under certain sections are appropriately sentenced, taking into account their prior criminal history. By including certain offences as qualifying for an earlier offence, the Criminal Code aims to support the fair and just application of the law in Canada.

COMMENTARY

Section 272(3) of the Criminal Code of Canada is an important provision when it comes to sentencing individuals who have been convicted of sexual offences or offences involving the use of violence. This provision helps to ensure that repeat offenders are given harsher sentences, which is important for protecting the public and deterring future criminal behavior. Under this section of the Criminal Code, if a person is convicted of a sexual offence or an offence involving the use of violence, and they have previously been convicted of one of several specific offences, that earlier offence is considered an "earlier offence" for the purpose of determining whether the current offence is a second or subsequent offence. The offences that qualify as "earlier offences" include offences under section 272 (sexual assault), subsection 85(1) or (2) (using a firearm while committing certain offences), section 244 or 244.2 (assaulting a peace officer with a weapon or causing bodily harm), and several other offences that involve violence or the use of a firearm. If a person is convicted of an offence that qualifies as a second or subsequent offence under this section of the Criminal Code, they are subject to harsher penalties, such as longer prison sentences, mandatory minimum sentences, and other restrictions on their freedom and liberties. This is important because repeat offenders are more likely to pose a danger to society, and the criminal justice system needs to take steps to mitigate that risk. However, the provision also includes an important safeguard against unfairly harsh sentencing. If 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which they were convicted of the current offence, the earlier offence can't be taken into account when determining whether the current offence is a second or subsequent offence. This safeguard is designed to prevent repeat offenders from being punished excessively for offences committed in the distant past, when they may have been young or inexperienced, and may have since made efforts to turn their lives around. Overall, Section 272(3) of the Criminal Code of Canada is an important provision that helps to ensure that repeat offenders are punished appropriately for sexual offences and offences involving violence and firearms. The provision strikes a balance between protecting the public and respecting the rights of individuals who may have made mistakes in the past but are seeking to move on and live productive, law-abiding lives.

STRATEGY

Section 272(3) of the Criminal Code of Canada is an important provision that is often considered in cases where a person has been convicted of a sexual offence. This provision specifies that in determining whether a person has committed a second or subsequent offence, certain earlier offences should be considered. These include offences under section 272 (sexual assault), subsections 85(1) or (2) (use of firearm in commission of offence) or section 244 or 244.2 (assault with a weapon). This provision can have significant consequences for a person who is facing charges for a sexual offence. If the person has a prior conviction for any of the listed offences, they may face harsher penalties, including longer periods of incarceration and mandatory minimum sentences. As a result, it is essential for anyone facing charges under section 272 or any of the other listed offences to understand this provision and to take steps to address it strategically. One key strategic consideration when dealing with section 272(3) is the timing of the current offence. As the provision indicates, an earlier offence will not be taken into account if 10 years have elapsed between the conviction of the earlier offence and the current offence. Therefore, if a significant period of time has elapsed since the prior conviction, it may be possible to argue that the earlier offence should not be considered in determining the sentence for the current offence. Another important strategy is to challenge the validity of the prior conviction. For example, if the prior conviction was obtained in violation of the person's rights, such as through coercion or a false confession, it may be possible to argue that it should not be considered in determining the sentence for the current offence. In addition, it may be possible to negotiate with the prosecution to reach a plea bargain that takes into account the existence of a prior offence. For example, a person may agree to plead guilty to a lesser charge in exchange for a reduced sentence or other concessions from the prosecution. Overall, dealing with section 272(3) of the Criminal Code of Canada requires careful attention to the specific circumstances of the case and a strategic approach to defending against the charges. By working closely with an experienced criminal defence lawyer, a person can develop a strong defence that takes into account the potential application of this provision, and increases the chances of achieving a favourable outcome in their case.