INTRODUCTION AND BRIEF DESCRIPTION
An accused can be tried and punished in any court with jurisdiction in the location of the offense or where the accused is located, but cannot be tried outside the province without the Attorney Generals consent.
SECTION WORDING
342(2) An accused who is charged with an offence under subsection (1) may be tried and punished by any court having jurisdiction to try that offence in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested or is in custody, but where the place where the accused is found, is arrested or is in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be commenced in that place without the consent of the Attorney General of that province.
EXPLANATION
Section 342(2) of the Criminal Code of Canada outlines the jurisdictional authority of courts when dealing with offences under subsection (1) of the same section. Specifically, it allows the accused to be tried and punished in any court that has jurisdiction to hear the offence. The court can be located either in the place where the offence was committed or where the accused is found, arrested, or in custody. This section is crucial because it allows for flexibility in the prosecution of offenders. For example, if an individual commits an offence in one province but is found and arrested in another, they can still be tried and punished for their offence in the second province. However, there is one exception to this rule. If the accused is found, arrested, or in custody outside the province in which the offence was committed, then no proceedings towards that offence can occur without the consent of the Attorney General of the original province. Overall, section 342(2) ensures that offenders are held accountable for their actions regardless of their location or the location of the offence. It promotes fairness and access to justice within the Canadian criminal justice system.
COMMENTARY
Section 342(2) of the Criminal Code of Canada sets out the rules for where an accused can be tried and punished for an offence under subsection (1). This provision is important for ensuring that accused individuals can be held accountable for their actions and that justice can be served, regardless of where the offence occurred or where the accused is located. This section allows for an accused to be tried and punished in the place where the offence is alleged to have been committed or in the place where the accused is found, is arrested, or is in custody. This means that if someone commits a crime in one province but is arrested in another province, they can still be tried in the first province if the court there has the jurisdiction to do so. The provision also includes an important limitation on where proceedings can be commenced. If the accused is found, arrested, or in custody outside of the province where the offence is alleged to have been committed, no proceedings can be commenced in that place without the consent of the Attorney General of that province. This limitation is designed to prevent accused individuals from being subject to multiple or conflicting prosecutions in different provinces. Without this limitation, an accused could potentially be tried for the same offence in multiple provinces, leading to inconsistencies and possibly even double jeopardy. By requiring the consent of the Attorney General of the province where the offence occurred, this provision ensures that the prosecution is centralized and there is a consistent approach to dealing with the alleged offence. It also helps to protect the rights of the accused and prevent the misuse of the justice system by preventing multiple prosecutions for the same offence. Overall, section 342(2) is an important provision in the Criminal Code of Canada aimed at ensuring that justice is served efficiently and consistently for accused individuals and society at large. While it may restrict where proceedings can be commenced, it ultimately helps to ensure that the legal system operates fairly and efficiently, protecting the rights of all involved.
STRATEGY
Section 342(2) of the Criminal Code of Canada provides for the trial and punishment of an accused charged with an offence under subsection (1). It also specifies the jurisdiction of the court where the offence is alleged to have been committed or where the accused is found, arrested, or in custody. However, if the place where the accused is found, arrested, or in custody is outside the province in which the offence is alleged to have been committed, no proceedings in respect of that offence shall be commenced in that place without the Attorney General of that province's consent. This provision raises a few strategic considerations for lawyers dealing with such cases. One of the strategic considerations is the jurisdiction in which to commence the proceedings. The law allows either the place where the offence was committed or where the accused is found, arrested, or in custody, to have jurisdiction over the case. As such, the defence counsel is better placed to advise on the most favourable jurisdiction, depending on the evidence, availability of key witnesses, and the legal precedent in the potential jurisdictions. Another strategic consideration is obtaining consent from the Attorney General of the province where the offence was committed. This is necessary when the accused is found, arrested, or in custody outside the province where the offence was committed. The consent requirement may be problematic if the Attorney General does not consider the matter to be of importance, or where there is a delay obtaining the consent. Defence counsel should be cautious of such delays and work to have the matter expedited by involving the accused's rights advocates or legal bodies. A strategy that could be employed is seeking a plea bargain with the prosecution. When a case falls under this provision, the accused might have difficulty obtaining a favourable outcome at trial, and it might be beneficial to explore a plea bargain with the prosecution. A plea bargain often involves the accused agreeing to plead guilty to a lesser charge to avoid going to trial, which could result in a more severe sentence if found guilty. Defence lawyers can negotiate an agreeable plea bargain with the prosecution, which could result in a reduced sentence for the accused. Another strategy is to challenge the constitutionality of the provision. Defence counsel may argue that the provision violates the accused's constitutional rights to a fair trial by restricting the location of the case. A legal challenge could result in the provision being struck down, allowing the accused to be tried and punished in any province as opposed to limiting the proceedings to the province where the crime was committed or where the accused was found, arrested, or in custody. In conclusion, Section 342(2) of the Criminal Code of Canada sets out the jurisdictional framework for trying and punishing an offence under subsection (1). Lawyers dealing with such cases must consider the strategic implications of the provision, including jurisdiction and consent from the Attorney General. They can also explore strategies such as plea bargains and constitutional challenges to achieve a favourable outcome for the accused.