section 462.37(2.05)

INTRODUCTION AND BRIEF DESCRIPTION

A court must not find an offender has engaged in a pattern of criminal activity unless they committed at least two serious offences or one criminal organization offence within a specified period.

SECTION WORDING

462.37(2.05) A court shall not determine that an offender has engaged in a pattern of criminal activity unless the court is satisfied, on a balance of probabilities, that the offender committed, within the period referred to in paragraph (2.01)(a), (a) acts or omissions other than an act or omission that constitutes the offence for which the offender is being sentenced that constitute at least two serious offences or one criminal organization offence; (b) acts or omissions that are offences in the place where they were committed and, if committed in Canada, would constitute at least two serious offences or one criminal organization offence; or (c) an act or omission described in paragraph (a) that constitutes a serious offence and an act or omission described in paragraph (b) that, if committed in Canada, would constitute a serious offence.

EXPLANATION

Section 462.37(2.05) of the Canadian Criminal Code pertains to the determination of a pattern of criminal activity. This section lays down specific criteria required for the court to establish that an offender has engaged in a series of criminal activities beyond the present crime that they are being tried for. To qualify as a pattern of criminal activity, the court must first be satisfied, on a balance of probabilities, that the offender has committed at least two serious offenses or one criminal organization offense within a designated period. This category can include criminal activities committed in Canada or elsewhere, provided they constitute at least two serious offenses or one criminal organization offense, as determined by the relevant jurisdiction. Courts consider serious offenses to include crimes such as murder, kidnapping, criminal harassment or any other acts of violence. Additionally, an offender's pattern of criminal activity may consist of offenses related to the present crime, as long as they can be classified as distinct acts that constitute a pattern of criminal conduct. It is important to note that a pattern of criminal conduct may also comprise the same offenses committed multiple times across a period, at the discretion of the court. The section further stipulates that the court must not determine that an offender has engaged in a pattern of criminal activity solely based on their present case. It is a measure designed to ensure that courts do not hastily prosecute defendants without proper evidence. Overall, this section of the Criminal Code of Canada underscores the gravity of criminal activity and makes it difficult for defendants to evade justice by repeating criminal offenses. It seeks to encourage prosecution for repeat offenses while ensuring that the courts apply a fair standard of evidence.

COMMENTARY

Section 462.37(2.05) of the Criminal Code of Canada is a crucial provision when it comes to sentencing offenders with a pattern of criminal activity. The section mandates that a court cannot determine that an offender has engaged in such a pattern unless the court has found that the offender committed, within a specified period, at least two serious offenses or one criminal organization offense. The provision also includes acts or omissions that are offenses in the place they were committed and, if committed in Canada, would constitute at least two serious offenses or one criminal organization offense. Finally, it considers two acts or omissions, one that constitutes a serious offense and one that, if committed in Canada, would also be a serious offense. The primary objective of this provision is to ensure that judges consider the offender's history of criminal behavior when sentencing an individual. The provision aims to address a dangerous pattern of criminal activity that the offender has developed over time, in the context of a larger criminal organization or otherwise. Sentencing an offender who has engaged in a pattern of criminal activity more severely promotes public safety and deters them and others from participating in further criminal activity. The provision's requirement of a balance of probabilities is essential in ensuring that judges do not mistakenly find an offender engaged in a pattern of criminal activity. The balance of probabilities standard is a lower standard than proof beyond a reasonable doubt, which is required for criminal convictions. The lower standard equips the court to consider and weigh all the available evidence to make informed decisions. Section 462.37(2.05) is also critical in preventing judges from relying on a single offense to determine that an offender has engaged in a pattern of criminal activity. The provision introduces a strict threshold that aims to guarantee that the offender has committed multiple serious offenses or a criminal organization offense before a finding of a pattern of criminal activity. However, it is worth noting that this provision needs to be applied cautiously when deciding the sentence of an offender. On the one hand, it is clear that an offender who has engaged in a pattern of criminal activity must be sentenced severely to protect public safety and deter them from further criminal activity. On the other hand, there is a risk that a judge may find an offender has engaged in a pattern of criminal activity, even if there is not enough evidence to have the required certainty. An unintended consequence of this provision may be any subsequent sentence handed down reflects the higher likelihood of criminal behavior, while lacking the certainty warranting the imposition of such a sentence. The Criminal Code's goals are to protect society and to reduce crime. Section 462.37(2.05) help promotes this objective by ensuring that a person who has engaged in a pattern of criminal activity is sentenced appropriately and held responsible for their actions. With the threshold for determining a pattern of behavior clearly defined, judges can make informed sentencing decisions based on relevant evidence, increasing accountability and reducing recidivism while maintaining the fundamental principles of justice.

STRATEGY

Section 462.37(2.05) of the Criminal Code of Canada provides guidelines for determining whether an offender has engaged in a pattern of criminal activity. This is a key consideration for sentencing, as it can affect the severity of the punishment that is imposed. As such, it is important for defense lawyers to carefully consider this section and strategize accordingly. One key strategy is to challenge whether the prosecution has met the burden of proof required by this section. The court must be satisfied, on a balance of probabilities, that the offender committed certain acts or omissions that meet the criteria outlined in paragraphs (a), (b), or (c). This means that the prosecution must present evidence that convincingly establishes the offender's involvement in these acts or omissions. If the defense can successfully challenge the prosecution's evidence or argue that it does not meet the required burden of proof, they may be able to avoid a finding of pattern of criminal activity. Another strategy is to argue that the offender's behavior does not meet the guidelines laid out in the section. For example, the section specifies that at least two serious offenses or one criminal organization offense must be committed within a certain period. If the defense can show that the offenses in question were not serious or did not meet the criteria for a criminal organization offense, they may be able to avoid a finding of pattern of criminal activity. It is also important to consider the potential consequences of a finding of pattern of criminal activity. When an offender is found to have engaged in such behavior, it can result in a significantly longer prison sentence. As such, it may be worthwhile for the defense to negotiate a plea agreement that does not include a finding of pattern of criminal activity, even if it means accepting a slightly longer sentence overall. Finally, it is important to keep in mind that the decision regarding whether an offender has engaged in a pattern of criminal activity ultimately lies with the courts. As such, defense lawyers may want to focus on presenting a compelling case that persuades the judge to reach a favorable decision. This can involve presenting evidence that shows the offender's behavior in a more sympathetic light, calling into question the reliability of the prosecution's evidence, or emphasizing factors such as the offender's rehabilitation efforts or community ties. Overall, dealing with section 462.37(2.05) of the Criminal Code of Canada requires careful consideration and strategic thinking. By understanding the requirements of the section and developing effective arguments, defense lawyers can work to secure the best possible outcome for their clients.