section 279.1(2.1)

INTRODUCTION AND BRIEF DESCRIPTION

This section defines which offenses are considered previous offenses for the purpose of determining if a convicted person has committed a second or subsequent offense.

SECTION WORDING

279.1(2.1) 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, 272 or 273, subsection 279(1) or section 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 279.1(2.1) of the Criminal Code of Canada concerns the determination of whether a convicted person has committed a second or subsequent offence under certain specified sections of the Criminal Code. This provision establishes that certain earlier offences will be considered as prior offences for the purposes of determining whether an offender has committed a second or subsequent offence. The provision identifies three categories of earlier offences that will be counted as prior offences: offences under section 279.1, certain specified offences involving violence or threats of violence, and certain other specified offences involving the use of a firearm. These offences are considered to be particularly serious and therefore warrant special consideration under the law. However, the provision also establishes a limitation period of 10 years, meaning that an earlier offence will not be considered as a prior offence if 10 years have elapsed between the date of the earlier conviction and the date of the current conviction. This provides some flexibility in the law and ensures that individuals who have committed an offence in the past but have not reoffended for a significant period of time are not unfairly penalized. Overall, section 279.1(2.1) serves to ensure that repeat offenders are held accountable for their actions while also providing some flexibility and fairness in the application of the law.

COMMENTARY

Section 279.1(2.1) of the Criminal Code of Canada is a provision that pertains to the sentencing of individuals who have been convicted of certain offenses, specifically with regards to the consideration of prior convictions when determining the appropriate sentence. This provision sets out the criteria and conditions under which a prior conviction will be taken into account as a previous offense, and when it will not. The provision defines the offenses that will be considered as previous convictions for the purpose of determining whether the convicted person has committed a second or subsequent offense. These offenses include offenses under section 279.1 itself, offenses under subsection 85(1) or (2) or section 244 or 244.2, or offenses under sections 220, 236, 239, 272 or 273, subsection 279(1), or sections 344 or 346 where a firearm was used in the commission of the offense. This provision is significant because it allows the courts to consider the offender's previous conduct and history when determining the appropriate sentence to be imposed. This consideration is based on the assumption that there is a correlation between past offenses and the likelihood of reoffending in the future, which is an essential consideration in decisions regarding the appropriate sentence. However, the provision also sets a time limit on when an earlier conviction can be taken into consideration. The provision specifies that an earlier offense will not be taken into account if ten years have elapsed between the day the individual was convicted of the previous offense and the day the person was convicted of the new offense, not taking into account any time in custody. This time limit is crucial because it suggests that people's behavior and attitudes can change over time, and a previous conviction may not necessarily indicate a higher likelihood of reoffending. Additionally, it ensures that people who have taken responsibility for their actions, served their time and maintained a clean record for a sufficient amount of time can be treated differently than those who have more recent criminal convictions. This provision is, therefore, an essential aspect of justice reform and ensures fairness in the administration of criminal justice. In conclusion, Section 279.1(2.1) of the Criminal Code of Canada is a provision that plays a crucial role in determining the appropriate sentence for individuals convicted of specific offenses. It ensures that prior convictions are taken into account only when necessary to protect society from the risk of future harm while ensuring that those who have paid their debt to society and have demonstrated a capacity for change are not unfairly punished. The provision, therefore, promotes both justice and fairness in the administration of criminal justice in Canada.

STRATEGY

Section 279.1(2.1) of the Criminal Code of Canada is a critical provision for crown attorneys and defense lawyers when dealing with the sentencing of individuals who are convicted of sexual offenses or other violent crimes. This provision allows the court to view the accused's prior criminal conviction as an 'earlier offense' when sentencing the accused for a subsequent crime. In such cases, the court may impose a harsher sentence on the accused, depending on the severity of the earlier crime and how long it has been since the accused was convicted of that crime. There are several strategic considerations that lawyers must keep in mind when dealing with section 279.1(2.1) of the Criminal Code. First, it is essential to determine whether the accused has any prior convictions that fall under the category of 'earlier offenses.' This means that defense counsel and crown prosecutors must conduct a thorough investigation to review the accused's criminal record. In cases where the accused has previous convictions, it may be beneficial to negotiate a plea agreement with the crown attorney. Secondly, the time frame between the earlier offense and the new conviction is a critical factor for strategic considerations. If ten years have passed since the earlier conviction, it cannot be considered an earlier offense for the purpose of sentence calculation. Defense counsel often tries to emphasize this point during the sentencing hearing, arguing that the court should not take into account an offense that occurred more than ten years ago. Thirdly, the severity of the earlier offense plays a significant role in a court's decision-making process. An earlier conviction of a sexual or violent offense, for instance, can result in a much harsher sentence than a conviction of a non-violent crime. Moreover, if the earlier conviction involved the use of a firearm, courts may impose a more severe punishment. In terms of strategies that could be employed, there are several possible approaches that a lawyer could take when dealing with section 279.1(2.1) of the Criminal Code. For example, if a plea bargain is an option, the defense counsel could negotiate for the earlier offense to be discounted or acknowledged as a factor that can mitigate the sentence. Crown attorneys, on the other hand, could present evidence and arguments that emphasize the severity of the earlier offense and advocate for significant punishment. Another approach that defense lawyers could take is to appeal the court's decision to consider an earlier offense. In such cases, the defense counsel may argue that certain procedural or legal errors were made during the trial, or the court overlooked certain facts that could have altered the sentencing decision. In conclusion, section 279.1(2.1) of the Criminal Code of Canada is a provision that can significantly impact sentencing decisions in sexual and violent crime cases. Lawyers must understand the strategic considerations involved and develop effective strategies to negotiate and argue for the best possible outcomes for their clients.