section 727(3)


A summary conviction court may impose a greater punishment on an offender if previous convictions are proven.


727(3) Where a summary conviction court holds a trial pursuant to subsection 803(2) and convicts the offender, the court may, whether or not the offender was notified that a greater punishment would be sought by reason of a previous conviction, make inquiries and hear evidence with respect to previous convictions of the offender and, if any such conviction is proved, may impose a greater punishment by reason thereof.


Section 727(3) of the Criminal Code of Canada empowers a summary conviction court to consider an offender's previous criminal record when determining the appropriate sentence for a new offence. Essentially, this section allows for an increased penalty to be imposed on a repeat offender who has already been convicted of a similar offence in the past. The section specifies that the court can take into account previous convictions whether or not the offender was notified in advance that a greater punishment would be sought due to their criminal history. This means that an accused person cannot assume that their previous criminal record will not be considered, even if the Crown does not mention it at the outset of the trial. The purpose of this section is to deter repeat offenders and ensure that they face appropriate consequences for their actions. Essentially, the logic is that if someone has already been punished for a crime in the past and has not learned their lesson, they should face harsher consequences the next time they commit a similar offence. Overall, while section 727(3) can result in penalties that are more severe, it serves an important purpose in promoting public safety and discouraging criminal behavior. It is also worth noting that this section only applies in the context of summary conviction courts, which are typically used for less serious offences. For more serious crimes, the accused would be tried in a higher court where different rules and procedures apply.


Section 727(3) of Canada's Criminal Code allows courts to impose harsher penalties on individuals who have previously been convicted of a crime. This provision applies specifically to cases heard in summary conviction courts when the offender has been previously convicted of a crime. The section allows the court to hold a trial and convict the offender without notifying them that a greater punishment will be sought due to their previous convictions. This means that an offender may be unaware that their prior convictions will influence the severity of the punishment they will receive for their current crime. This provision affords the court the ability to review the offender's previous convictions and gather evidence concerning the same. This provision is heavily reliant on the effective and efficient management of a firm criminal record system, whereby a judge can assess and weigh the offender's criminal record and determine if it is appropriate for their current penalty to be enhanced. This also raises the question of how a criminal record can influence sentencing and whether offenders should be notified of any potential increases in punishment based on their past convictions. While this section may serve as a means of deterring repeat offenders, it is subject to criticism from legal scholars, human rights advocates, and civil liberties groups who argue that it infringes on the principles of justice and due process. Critics argue that this provision is discriminatory and punishes people based on their past instead of their current offence, and fails to prioritize the principles of punishment for deterrence and reform as opposed to retribution. Another criticism of this section is its potential to increase the number of individuals who plead guilty in summary conviction cases to avoid the possibility of harsher sentences. This incentivizes individuals to forego a trial to avoid the risk of harsher sentencing, which ultimately undermines the criminal justice system's purpose and can lead to innocent people being convicted. Moreover, the provision disproportionately affects marginalized and disadvantaged communities that have a higher likelihood of being victims of unfair practices in the criminal justice system. These communities are more likely to be subject to multiple convictions and will have a higher probability of receiving a more significant punishment under this provision. As such, while it is essential to hold offenders accountable for their actions and to deter crime, sections like 727(3) can infringe on an individual's right to a fair trial and due process. Policymakers and legal scholars need to critically review these provisions and ensure that they do not undermine the principles of justice and fairness within the Canadian criminal justice system. They also need to critically examine which types of convictions can be used to enhance a defendant's punishment so as not to circumvent more substantive legal protections concerning priors prosecution as well as the use of conviction histories in sentencing.


Section 727(3) of the Criminal Code of Canada provides the summary conviction court with the discretion to impose a greater punishment on an offender if they have previous convictions. This provision is a powerful tool for prosecutors in cases where an offender has a history of similar offences. However, for defence counsel, this provision presents several challenges when strategizing on behalf of their client. In this paper, we will explore strategic considerations for counsel when dealing with section 727(3), and examine several strategies that can be employed in these cases. One crucial strategic consideration when dealing with section 727(3) is the preparation of the defence case. Counsel must investigate the client's previous convictions carefully and determine whether these convictions can be successfully challenged. This strategy includes thoroughly analyzing the facts surrounding each previous conviction and looking at the legal arguments that can be made to discredit them. If successful, this strategy could prevent the court from imposing a more substantial punishment on the offender by reason of their previous convictions. Another consideration is the need to obtain a discharge for the current offence. Given that section 727(3) only applies to offenders who are convicted, obtaining a discharge for the current offence could prevent the court from considering previous convictions for sentencing purposes. However, obtaining a discharge is not always possible, especially in cases where the offender has a long history of similar offences or where the current offence is particularly serious. Counsel may also consider negotiating a plea deal with the prosecutor, where the client agrees to plead guilty to the current offence in exchange for the prosecutor not seeking increased punishment by reason of previous convictions. If successful, this strategy could result in a more favourable sentence for the offender, as well as avoiding the time and expense of a trial. Another strategy that could be employed is to challenge the constitutionality of section 727(3). This strategy would require arguing that section 727(3) violates the offender's fundamental rights and freedoms protected under the Canadian Charter of Rights and Freedoms. However, successfully challenging the constitutionality of section 727(3) would be difficult, given that it has been upheld by the courts. Finally, counsel can use section 718.2 of the Criminal Code, which requires the court to consider the principles of sentencing, including the fundamental principle that a sentence should not be increased beyond what is necessary to achieve its objectives. Counsel can argue that imposing a greater punishment based on previous convictions would be excessive and would not serve the objectives of sentencing. In conclusion, section 727(3) of the Criminal Code of Canada presents several strategic considerations for defence counsel. The most effective strategies for counsel will depend on the specific circumstances of each case, including the nature of the current offence, the strength of the evidence regarding previous convictions, and the offender's criminal history. Nonetheless, the above strategies could significantly enhance a client's case, and provide a more favourable outcome in the sentencing process.