INTRODUCTION AND BRIEF DESCRIPTION
The court must allow the prosecutor and offender to provide submissions on relevant facts before determining the sentence.
SECTION WORDING
723(1) Before determining the sentence, a court shall give the prosecutor and the offender an opportunity to make submissions with respect to any facts relevant to the sentence to be imposed.
EXPLANATION
Section 723(1) of the Criminal Code of Canada forms a critical component of the sentencing process in Canadian criminal law. This section mandates that before a court can impose a sentence on an offender, it must provide an opportunity for both the offender and the prosecutor to submit any facts that they deem to be relevant to the imposition of the sentence. This means that at this stage, both parties can present arguments on what they believe would be an appropriate sentence, given the nature and circumstances of the offense, the offender's criminal record, and other mitigating or aggravating factors. This section has several important implications for the sentencing process in Canada. Firstly, it ensures that the offender is provided with an opportunity to be heard and that their voice is considered in determining the sentence. By extension, this prevents any arbitrary or unfair imposition of sentences on offenders, as the court cannot make a determination without considering both sides of the argument. Secondly, this section promotes transparency and accountability in the sentencing process. By allowing the prosecutor and offender to make submissions on relevant facts, the court can act upon a full and informed understanding of the facts and circumstances of the case. This can result in judges being more accountable and transparent in the sentencing decisions they make. Overall, Section 723(1) of the Criminal Code of Canada is a critical provision that ensures that the sentencing process that is used in Canada is fair, equitable, transparent, and accountable. It affirms the importance of both sides of the argument being heard and ensures that the judge's sentencing decision has a sound evidentiary basis.
COMMENTARY
Section 723(1) of the Criminal Code of Canada requires that before determining a sentence, the court must give both the prosecutor and the offender the opportunity to make submissions on any relevant facts that may have an impact on the sentence. The purpose of this section is to ensure that the sentence imposed by the court takes into account all relevant factors related to the crime, including the offender's personal circumstances, the nature of the offense, and the impact of the crime on the victim and the community. This provision is a fundamental aspect of the sentencing process in Canada and is critical to ensuring fairness and justice in the courts. It allows both sides to make arguments in order to provide a complete picture of the circumstances in which the crime was committed so that the court is better equipped to make an informed decision on the appropriate sentence. Section 723(1) recognizes that no two cases are alike and that each crime requires a unique approach. It allows the court to consider all relevant factors, including mitigating and aggravating factors, to arrive at a sentence that is proportional to the severity of the crime and the offender's level of responsibility. This provision ensures that the sentence imposed is fair, just, and reasonable given the circumstances of the case. The prosecutor's submission may focus on aggravating factors, such as the severity of the crime, the harm caused to the victim and the community, and the need for deterrence. The prosecutor may also provide information about the offender's criminal history, if any, and present arguments for a harsher sentence. On the other hand, the offender's submission may focus on mitigating factors, such as the offender's personal circumstances, including their age, mental health, and background. The offender may also present arguments for a more lenient sentence, such as showing remorse for their actions, taking responsibility for the crime, and making amends. The opportunity given to both parties to make submissions under Section 723(1) is critical as it allows the court to hear from both the prosecutor and the offender, providing a balanced perspective of the case. This ensures that the court has all the necessary information to impose an appropriate sentence that considers both the interests of the community and the offender's rights. In conclusion, Section 723(1) of the Criminal Code of Canada is an essential provision that ensures fairness and justice in the courts. It allows the court to consider all relevant factors and to provide an individualized approach to sentencing. The opportunity to make submissions ensures that the court hears from both sides, leading to a balanced perspective, and ultimately results in a more just and reasonable sentence.
STRATEGY
Section 723(1) of the Criminal Code of Canada is a provision that gives the prosecutor and offender a significant amount of input in the sentencing process. This means that a court must grant both parties an opportunity to make submissions regarding any facts relevant to the sentence that will be imposed. This provision can pose numerous strategic considerations when handling a case, and a range of tactics can be employed to maximize outcomes based on the facts at hand. One key strategic consideration is to thoroughly research and prepare submissions based on the specific circumstances of the case. This process should involve gathering and analyzing all available evidence and establishing how those facts could be argued to affect the sentence. While the burden of proof lies with the prosecutor, the defendant has the opportunity to rebut any allegations through a presentation of countervailing evidence. This can be especially crucial in achieving a sentence that is less severe than what the prosecutor is advocating for. The defendant must, therefore, prepare compelling submissions that address any potential gaps in the prosecutor's arguments and provide alternative interpretations of the evidence. Another strategy is to present self-mitigating evidence that could minimize the severity of the sentence. Mitigating factors can include evidence that shows the defendant was acting under duress or was otherwise not in complete control of their actions. For example, if a defendant committed an offense due to a mental health condition or substance abuse issue, they should present this evidence to the court. The self-mitigating evidence could help establish an appropriate sentencing range that is not overly severe. A critical factor in presenting effective submissions is to develop a rapport with the judge presiding over the case. A defendant's lawyer must communicate persuasively, clearly, and cogently, in a way that resonates with the judge. This requires identifying and responding to the priorities and concerns of the judge in a given case. By doing so, the lawyer can increase the chances that the judge will be inclined to look favorably upon the defendant's submissions. In closing, Section 723(1) of the Criminal Code of Canada provides both the prosecutor and defense with a crucial opportunity to make submissions that sway the court towards a particular sentence. These submissions carry significant weight in determining the final sentence, and as such, should be well-prepared and carefully researched. Arguing mitigating factors, presenting countervailing evidence, and developing a rapport with the judge are some effective strategies that a defendant can employ to maximize their chances of securing a favorable sentence. By doing so, the defendant can potentially avoid or minimize punishment and more quickly move on with their life.