section 742.1

INTRODUCTION AND BRIEF DESCRIPTION

An overview of section 742.1 of the Criminal Code of Canada which sets out conditional sentences and how they are imposed an administered.

SECTION WORDING

742.1 If a person is convicted of an offence and the court imposes a sentence of imprisonment of less than two years, the court may, for the purpose of supervising the offenders behaviour in the community, order that the offender serve the sentence in the community, subject to the conditions imposed under section 742.3, if (a) the court is satisfied that the service of the sentence in the community would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2; (b) the offence is not an offence punishable by a minimum term of imprisonment; (c) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 14 years or life; (d) the offence is not a terrorism offence, or a criminal organization offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years or more; (e) the offence is not an offence, prosecuted by way of indictment, for which the maximum term of imprisonment is 10 years, that (i) resulted in bodily harm, (ii) involved the import, export, trafficking or production of drugs, or (iii) involved the use of a weapon; and (f) the offence is not an offence, prosecuted by way of indictment, under any of the following provisions: (i) section 144 (prison breach), (ii) section 264 (criminal harassment), (iii) section 271 (sexual assault), (iv) section 279 (kidnapping), (v) section 279.02 (trafficking in persons material benefit), (vi) section 281 (abduction of person under fourteen), (vii) section 333.1 (motor vehicle theft), (viii) paragraph 334(a) (theft over $5000), (ix) paragraph 348(1)(e) (breaking and entering a place other than a dwelling-house), (x) section 349 (being unlawfully in a dwelling-house), and (xi) section 435 (arson for fraudulent purpose).

EXPLANATION

A conditional sentence is a sentence of imprisonment, where the convicted person may serve his or her sentence in the community, subject to certain conditions (ex. house arrest, non-contact with certain individuals, keeping peace and being of good behaviour etc.) rather than in jail.

COMMENTARY

Section 742.1 of the Criminal Code of Canada provides for the possibility of community sentences for offenders convicted of crimes carrying a sentence of less than two years. This section recognizes the potential for rehabilitation and reintegration of individuals in the community, while ensuring that the safety of the community is not compromised. The purpose of allowing community sentences is to provide alternative ways of punishing offenders that are less expensive to the state than incarcerating them, while also promoting rehabilitation and reintegration of offenders back to society. Community sentences are also designed to allow offenders to maintain their employment or family life. The conditions imposed under section 742.3 may include requirements such as reporting to a community supervision officer, residing at a specific location, abstaining from drugs and alcohol, and attending rehabilitation programs. These conditions are designed to help the offender address the underlying issues that contributed to their criminal behavior, as well as to ensure that they do not pose a risk to the community. However, not all offenders are eligible for community sentences. The court must be satisfied that such a sentence would not endanger the safety of the community and would be consistent with the fundamental purpose and principles of sentencing set out in sections 718 to 718.2 of the Criminal Code. These principles include denunciation, deterrence, rehabilitation, and protection of the public, among others. In addition to eligibility criteria based on the severity of the offense, community sentences are also subject to a range of exclusions, which are listed in paragraphs (b) to (f) of section 742.1. These exclusions ensure that certain offenses that are considered particularly serious are not eligible for community sentences. For example, offenses involving weapons, drugs, and violence are excluded, as well as offenses involving criminal organizations, terrorism, sexual assault, and kidnapping. The use of community sentences is an important part of the Canadian criminal justice system, as it provides a flexible and effective way of dealing with offenders while minimizing the risk to the public. By combining punishment with rehabilitation, community sentences can help bring about positive changes in offenders, reduce the likelihood of re-offending, and make the community a safer place. However, there is a need to ensure that the offenders who receive community sentences are closely supervised and that the conditions imposed on them are appropriate to their needs and capabilities. This requires the involvement of trained professionals who can assess the needs of the offender and provide the necessary support and resources to help them reintegrate into the community.

STRATEGY

In criminal law, there are numerous "fault lines" that exist, where the difference between success and failure are astronomical. For example, the difference between a suspended sentence and probation, versus a conditional discharge, is profound. Another such fault line exists between a sentence involving jail, versus no jail. In this vein, a conditional sentence, which is still considered a jail sentence, can act as a buffer between an actual jail sentence, and a sentence of imprisonment still in the community. A conditional sentence will allow a person to maintain their employment and avoid the effect of destroying the stability they have in their life. Although recently, the legislature has curtailed the number of offences that are eligible for a conditional sentence, for those that still qualify, it is often the solution for those offenders who have stable employment, and must maintain it at all costs.

QUESTIONS AND ANSWERS

Q.

Am I eligible for a conditional sentence?

A.

You are eligible for a conditional sentence if: (a)The alleged offence is not punishable by a minimum term of imprisonment; (b) The sentencing judge determines that the offence should be subject to a term of imprisonment of less than two years; (c)The sentencing judge is satisfied that serving the sentence in the community would not endanger the safety of the community; and (d) The sentencing judge is satisfied that the conditional sentence would be consistent with the fundamental purpose and principles of sentencing (deterrence, denunciation, rehabilitation, restitution, promoting responsibility and separation from society where necessary)

Q.

Does a conditional sentence spare me a criminal record?

A.

No, it is a sentence of imprisonment that will be reflected on a criminal record check.

Q.

What happens if I breach my conditions?

A.

Depending on the nature and severity of the breach, the court may: (a)take no action; (b) change the optional conditions; (c) suspend the conditional sentence for a period of time and require the offender to serve a portion of the sentence, and then resume the conditional sentence with or without changes to the optional conditions; or (d) terminate the conditional sentence and require the offender to serve the balance of the sentence in custody.

RELATED CASES

The Supreme Court set out a number of principles in this case. The key result of the Proulx decision is that there is no presumption against the use of a conditional sentence if the crime does not have a mandatory period of incarceration. Other principles may be summarized as follows: Unlike probation, which is primarily a rehabilitative sentencing tool, a conditional sentence is intended to address both punitive and rehabilitative objectives. Accordingly, conditional sentences should generally include punitive conditions that restrict the offenders liberty. Therefore, conditions such as house arrest or strict curfews should be the norm, not the exception. A conditional sentence is available for all offences in which the statutory prerequisites are satisfied. There is no presumption that conditional sentences are inappropriate for specific offences. Nevertheless, the gravity of the offence is clearly relevant to determining whether a conditional sentence is appropriate in the circumstances. There is also no presumption in favour of a conditional sentence if the prerequisites have been satisfied. Serious consideration, however, should be given to the imposition of a conditional sentence in all cases where these statutory prerequisites are satisfied. A conditional sentence can provide a significant amount of denunciation, particularly when onerous conditions are imposed and the term of the sentence is longer than would have been imposed as a jail sentence. Generally, the more serious the offence, the longer and more onerous the conditional sentence should be. A conditional sentence can also provide significant deterrence if sufficient punitive conditions are imposed, and judges should be wary of placing much weight on deterrence when choosing between a conditional sentence and incarceration. When the objectives of rehabilitation, reparation and promotion of a sense of responsibility may realistically be achieved, a conditional sentence will likely be the appropriate sanction, subject to considerations of denunciation and deterrence. While aggravating circumstances relating to the offence or the offender increase the need for denunciation and deterrence, a conditional sentence may be imposed even if such factors are present. Neither party has the onus of establishing that the offender should or should not receive a conditional sentence. However, the offender will usually be best situated to convince the judge that such a sentence is appropriate. It will be in the offenders interest to make submissions and provide information establishing that a conditional sentence is appropriate. Conditional sentencing was enacted both to reduce reliance on incarceration as a sanction and to increase the principles of restorative justice in sentencing.

RELATED LINKS

A review of the sentencing options that are available in the Criminal Code.

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