section 738(2)

INTRODUCTION AND BRIEF DESCRIPTION

Provinces can prevent enforcement of restitution orders as a condition of probation or conditional sentence orders.

SECTION WORDING

738(2) The lieutenant governor in council of a province may make regulations precluding the inclusion of provisions on enforcement of restitution orders as an optional condition of a probation order or of a conditional sentence order.

EXPLANATION

Section 738(2) of the Criminal Code of Canada gives the province's lieutenant governor in council the power to draft regulations that prevent the inclusion of provisions to enforce restitution orders as an optional condition of a probation or conditional sentence order. Restitution is an important tool in the criminal justice system that requires offenders to compensate victims of their crimes for the harm they caused. Restitution orders require offenders to repay the victim for losses or damages sustained as a result of the offense. When an offender is placed on probation or a conditional sentence, they are required to follow a series of conditions and restrictions that may include treatment programs, curfews, and community service. In some cases, probation or conditional sentence orders include a provision for enforcing restitution orders. This means that if an offender fails to pay the victim, they may face additional penalties or revocation of their probation or conditional sentence order. Section 738(2) allows the province to decide whether or not to include this provision in probation or conditional sentence orders. If the province chooses to prohibit the inclusion of provisions for enforcing restitution orders, offenders may be less likely to pay restitution and thus, victims may continue to suffer the financial consequences of the crime. Alternatively, if the province allows for provisions to enforce restitution orders, it could provide victims with the ability to seek the compensation they deserve. Ultimately, the purpose of section 738(2) is to allow for flexibility in the criminal justice system and give provinces the ability to determine what conditions and requirements are appropriate for probation or conditional sentence orders.

COMMENTARY

Section 738(2) of the Criminal Code of Canada is an important provision that gives the provincial governments the power to regulate the enforcement of restitution orders as a condition of probation or a conditional sentence. The goal of this provision is to ensure that these sentences are effective in promoting rehabilitation and reintegration into society while also holding offenders accountable for their crimes. When someone is convicted of a criminal offence, they may be sentenced to probation or a conditional sentence as an alternative to incarceration. These sentences allow offenders to remain in the community while serving their punishment and require them to comply with specific conditions that are meant to address the underlying causes of their criminal behaviour. One of the most common conditions that is imposed is the requirement to pay restitution to the victim or victims of the crime. Restitution orders are a vital component of the criminal justice system as they acknowledge the harm that has been caused by the offence and provide the victim with some measure of compensation. These orders can also be an effective tool for encouraging offenders to take responsibility for their actions and make amends for the harm they have caused. However, the ability to enforce these orders can be difficult, particularly if the offender does not have the means to pay. Section 738(2) recognizes that the enforcement of restitution orders may not always be appropriate or effective as a condition of probation or a conditional sentence. For example, if an offender is unemployed or has limited financial resources, the burden of making regular payments may be too great. In such cases, the requirement to pay restitution may create an undue hardship that could hinder the offender's ability to successfully complete their sentence. By giving the provincial governments the power to regulate the inclusion of provisions on the enforcement of restitution orders as an optional condition of probation or a conditional sentence, Section 738(2) helps ensure that these sentences are tailored to the needs of the offender and the circumstances of the crime. In some cases, it may be appropriate to require offenders to make restitution payments as a condition of their sentence. However, in other cases, it may be more effective to focus on other conditions such as therapy, community service, or drug treatment. Overall, Section 738(2) is an important provision that recognizes the complexity of the criminal justice system and the need for flexible and effective sentencing options. It provides the provincial governments with the power to regulate the enforcement of restitution orders as a condition of probation or a conditional sentence, ensuring that these sentences are tailored to the needs of the offender and the community while also promoting rehabilitation and reintegration into society.

STRATEGY

Section 738(2) of the Criminal Code of Canada provides authority to provincial governments to regulate the enforcement of restitution orders as an optional condition for probation and conditional sentence orders. When dealing with this section of the Criminal Code of Canada, there are various strategic considerations to take into account. These considerations can include the interpretation and application of the section, the specific context of the case, and the potential impact of restitution orders on the offender and the victim. One strategy that can be employed when dealing with section 738(2) is to engage in legal research and analysis to understand the purpose and scope of the provision. This can involve examining case law and legislative history to get a better understanding of how courts have interpreted and applied the provision. Furthermore, analyzing the wording and structure of the provision can help identify any potential ambiguities or gaps that may need to be addressed. Another strategy that can be employed is to consider the specific context of the case, including the nature of the offence and the offender's circumstances. For instance, in cases where the offender has limited financial resources or is facing significant social or economic barriers, a restitution order may not be practical or effective. Alternatively, in cases where the offender has significant assets or income, a restitution order may be appropriate and necessary to ensure the victim is compensated for their losses. Furthermore, it's important to consider the potential impact of restitution orders on the offender and the victim. Restitution orders can have various positive and negative effects on both parties. For instance, restitution orders can provide a sense of justice and closure for the victim, and can promote accountability and responsibility on the part of the offender. However, restitution orders can also be financially burdensome for the offender, and may hinder their ability to rehabilitate and reintegrate into society. In terms of specific strategies that can be employed for dealing with section 738(2), one potential approach is to advocate for consistent and fair application of the provision across different jurisdictions. This can involve working with legal associations and advocacy groups to promote the development of best practices for implementing restitution orders as an optional condition of probation and conditional sentence orders. Another strategy is to work with relevant stakeholders, including probation officers, victim advocates, and community organizations, to develop customized and flexible restitution plans that take into account the unique circumstances of each offender and victim. Restitution plans can involve various forms of compensation, including financial payments, community service, and restorative justice programs. Overall, there are various strategic considerations to take into account when dealing with section 738(2) of the Criminal Code of Canada. These considerations can involve legal analysis, contextual assessment, and stakeholder engagement. By adopting effective and collaborative strategies, stakeholders can help ensure that restitution orders are fair, effective, and responsive to the needs of both offenders and victims.