section 718.3(1)

INTRODUCTION AND BRIEF DESCRIPTION

The court has discretion to impose punishment according to the different degrees or types of punishment prescribed in the relevant enactment.

SECTION WORDING

718.3(1) Where an enactment prescribes different degrees or kinds of punishment in respect of an offence, the punishment to be imposed is, subject to the limitations prescribed in the enactment, in the discretion of the court that convicts a person who commits the offence.

EXPLANATION

Section 718.3(1) of the Criminal Code of Canada essentially means that when a certain law prescribes varying degrees or types of punishments for a particular offence, the court is given discretionary power to determine which degree or type of punishment should be imposed on the offender, based on the specific circumstances of the case. The limitations that are prescribed in the enactment refer to any restrictions or guidelines that may be imposed by the law in regards to the sentencing process. For example, certain offences may have mandatory minimum sentences that must be imposed, or there may be a maximum limit to the severity of the punishment that can be given. The discretionary power given to the court through this section is important, as it allows for a case-by-case assessment of an offender's culpability, responsibility, and potential for rehabilitation. This individualized approach to sentencing is a fundamental aspect of Canadian criminal law, as it ensures that justice is not only done, but also seen to be done. However, the discretionary power that is granted to the court also means that there is potential for variation in sentencing between different judges or courts, which can create inconsistency and inequality in the criminal justice system. To mitigate this risk, there are guidelines and principles set out in the Criminal Code, as well as in case law, that judges must follow when considering a sentence for an offender. These factors include the gravity of the offence, the offender's criminal record, and any mitigating or aggravating circumstances that may be present.

COMMENTARY

Section 718.3(1) of the Criminal Code of Canada is a significant provision that deals with the authority of the court in punishing an offender. It provides that where a law sets out different levels or types of punishment for an offense, the court that convicts the offender has the discretion to determine what level or kind of punishment to impose. However, this discretion is subject to the restrictions outlined in the law. This section of the Criminal Code is of utmost importance as it gives power to the courts to decide on the seriousness of an offense and to impose a suitable punishment according to the law. The courts are responsible for assessing the individual context of each case, which includes both the offender's circumstances, and other mitigating or aggravating factors when determining what punishment is appropriate. For instance, if an individual is convicted of a crime but is a first-time offender, the court may choose to impose a lower sentence compared to a repeat offender. The discretion given to the courts under Section 718.3(1) is important to ensure that justice is served on a case by case basis. It allows the courts to consider several factors such as the seriousness of the crime, the offender's criminal history, and the impact of the penalty on the offender and their family. The aim is to balance the interests of the individual, society, and the offender. Moreover, courts often impose sentences with an objective of rehabilitating offenders and helping them to reintegrate into society. This provision resonates with the Canadian Criminal Justice System's focus on rehabilitation, which is to prevent reoffending and promote an individual's reintegration into society. The courts' discretion, however, is not without its limitations. It is subject to the provisions outlined in the Act. These provisions may include mandatory minimum sentences, which restrict judges from imposing sentences lower than a specified period. This limitation may sometimes be at odds with the court's discretion to determine suitable sentences, especially for cases where the punishment does not fit the crime, or where an offender may have particular mitigating factors. One of the primary criticisms of Section 718.3(1) is that it gives too much power to the courts to subjectively determine the appropriate punishment to be imposed in distinct cases. While the courts are well aware of their obligations and the vital role they play in the criminal justice system, the fact remains that there is always the possibility of unfairness and biases in the use of discretion. Additionally, some people believe that the court's power of discretion creates uncertainty and unpredictability in sentencing, leading to a lack of clarity in the application of the law. While these criticisms certainly warrant attention, they do not necessarily undermine the importance of this provision in the broader criminal justice system. In conclusion, Section 718.3(1) of the Criminal Code of Canada is a crucial provision that empowers courts to decide on the appropriate punishment to impose on an offender. The provision is critical because it encourages the use of individuals' contextual information and circumstances to determine a just sentence for the specific offender. While there are criticisms of this provision, it is inherently important to balance the interests of individuals and society by ensuring the reintegration of offenders into society and maintaining public safety.

STRATEGY

Section 718.3(1) of the Criminal Code of Canada gives judges the discretion to impose different degrees or kinds of punishment in relation to an offence prescribed by law. The section imposes certain limitations that the judge must adhere to when considering the type and degree of punishment to be meted out. The section is a crucial aspect of the criminal justice system and offers strategic considerations for lawyers and defendants in preparing their defense when facing criminal charges. One strategic consideration for lawyers and defendants facing criminal charges is the interpretation of the term "different degrees or kinds of punishment" in the section. The term has been interpreted broadly by the court, giving judges a wide range of options when considering punishment. The court's interpretation allows for judges to consider alternative sentences such as probation, community service, fines, and conditional sentences. Therefore, lawyers can seek alternative forms of punishment that are consistent with the offender's specific circumstances, such as mental illness or addictions. Another strategic consideration when dealing with this section of the Criminal Code is the preparation of the sentencing submissions. The defense lawyer has a duty to present mitigating circumstances to the court that can influence the type and severity of the punishment. Mitigating circumstances are facts or factors that reduce the blame, guilt, or seriousness of the offense, and can include factors such as the offender's age, family background, or mental illness. A good understanding of the relevant case law and statutory provisions is crucial in presenting a compelling sentencing submission. In addition, a defendant should also be prepared to participate in the sentencing hearing to show contrition and remorse if possible. This is because judges consider the defendant's willingness to accept responsibility and make amends when considering the type and severity of the punishment to impose. Expressing genuine remorse can lead to a lesser sentence, and a defendant who is seen as attempting to make amends may be more likely to get a favorable sentence. Another strategy that can be employed when dealing with section 718.3(1) of the Criminal Code is for defendants to engage in plea bargaining. Plea bargaining is a strategic negotiation between the prosecution and defense to arrive at a mutually acceptable arrangement for a guilty plea. Plea bargaining can lead to a reduced sentence or charges, and it can also reduce the time and expense of criminal proceedings. However, it is important for defendants to understand that in exchange for pleading guilty to a lesser charge, they will forfeit the right to a full trial. In conclusion, section 718.3(1) of the Criminal Code of Canada provides significant strategic considerations for lawyers and defendants facing criminal charges. Understanding the broad interpretation of the term "different degrees or kinds of punishment," preparing effective sentencing submissions, participating in the sentencing hearing when possible, and engaging in plea bargaining are all strategies that can be employed to achieve a favorable outcome. Ultimately, the goal is to receive a sentence that is fair, reasonable, and proportionate to the offense committed.