section 742.2(1)

INTRODUCTION AND BRIEF DESCRIPTION

The court must consider whether section 109 or 110 is applicable before imposing a conditional sentence under section 742.1.

SECTION WORDING

742.2(1) Before imposing a conditional sentence under section 742.1, the court shall consider whether section 109 or 110 is applicable.

EXPLANATION

Section 742.2(1) of the Criminal Code of Canada is a provision that outlines one of the preliminary considerations that a court must make before imposing a conditional sentence under section 742.1. Essentially, the court must consider whether the offender is subject to a mandatory minimum sentence under section 109 or 110 of the Criminal Code before deciding whether to impose a conditional sentence. Section 109 of the Criminal Code is a provision that sets out mandatory minimum sentences for certain offenses involving firearms. Specifically, it provides for a minimum sentence of five years for certain offenses involving firearms, and a minimum sentence of one year for other offenses involving firearms. Section 110 of the Criminal Code, on the other hand, sets out mandatory minimum sentences for certain offenses involving the use of violence or threats of violence. The purpose of section 742.2(1) is to ensure that the court takes into account any mandatory minimum sentences that may be applicable before deciding whether to impose a conditional sentence. If the offender is subject to a mandatory minimum sentence, the court may not be able to impose a conditional sentence, as the mandatory minimum sentence would take precedence. Overall, section 742.2(1) is an important provision that helps to ensure that the court takes into account all relevant factors before imposing a sentence on an offender. By requiring the court to consider any mandatory minimum sentences that may be applicable, the provision helps to promote consistency and fairness in the criminal justice system.

COMMENTARY

Section 742.2(1) of the Criminal Code of Canada has a significant role in the Canadian criminal justice system. This section provides a mandatory consideration to the court before convicting an offender under section 742.1, which allows for the imposition of a conditional sentence, commonly known as house arrest. This consideration involves determining whether section 109 or 110 applies to the offender. Section 109 of the Criminal Code deals with mandatory minimum sentences for the offences of assault and aggravated assault when committed with a weapon, while section 110 of the Criminal Code deals with mandatory minimum sentences for the offences of sexual assault and aggravated sexual assault. These sections are essential in maintaining the integrity of the justice system in punishing those who have committed serious violent crimes. When considering whether to impose a conditional sentence under section 742.1 of the Criminal Code, the court must give careful consideration to these mandatory minimum sentences. An offender who falls within the scope of these provisions must be dealt with accordingly, and a sentence of house arrest would not be appropriate. This is because conditional sentences are reserved for lesser offences or for offenders who have committed crimes for the first time, or those who have demonstrated a genuinely reformed character. Section 742.2(1) of the Criminal Code ensures that the court considers the mandatory minimums sentences that apply to the specific offence committed by the offender before imposing a conditional sentence. This mandatory consideration serves a twofold purpose. First, it ensures that the sentence is appropriate for the offence committed, and second, it helps to maintain the public's confidence in the justice system by demonstrating that the punishment fits the crime. In some cases, the court may determine that a conditional sentence is not appropriate, even if section 109 or 110 does not apply. The court may consider other factors, such as the seriousness of the offence, the offender's criminal record, and the potential for rehabilitation, when imposing the sentence. However, the mandatory consideration of section 742.2(1) ensures that the court does not overlook these mandatory minimums. In summary, section 742.2(1) of the Criminal Code of Canada plays a crucial role in the Canadian criminal justice system. This section ensures that the court considers the mandatory minimum sentences for the offences committed by an offender before imposing a conditional sentence. This mandatory consideration helps to maintain the public's trust in the justice system and ensures that sentences are proportionate to the offence committed.

STRATEGY

Section 742.2(1) of the Criminal Code of Canada is a crucial part of the Canadian justice system and serves as a tool for judges in determining whether to impose a conditional sentence or imprisonment for an offender. The Code requires that judges must examine whether section 109 or 110 of the Code is applicable before imposing a conditional sentence. There are various strategic considerations for lawyers and judges when dealing with section 742.2(1). Firstly, lawyers should be mindful of the crimes their client has been convicted of, as the application of the section is only relevant to certain offences. Section 109 deals with offences committed against a person who is a spouse, common-law partner, or a parent where the offender willfully causes bodily harm or commits an assault resulting in bodily harm. On the other hand, section 110 pertains to offences committed against a person under the age of 16 and involves sexual assault, sexual interference, or sexual exploitation. Another factor to consider is the potential for sentencing disparities. Conditional sentences are available to offenders who meet the criteria set out in section 742.1 and are appropriate for offenses where the punishment fits the crime. However, section 742.2(1) limits this option where section 109 or 110 is applicable. A practical consideration, therefore, is whether judges should have unfettered discretion to impose a conditional sentence, irrespective of the nature of the offense. This could result in inconsistent sentencing or lead to the under-punishment of offenders. When preparing submissions, defense lawyers could argue that the application of section 742.2(1) should be limited or challenged on constitutional grounds, given the negative impact it has on the offender, the community, and the justice system. They could also consider suggesting alternative sentencing options, such as community service or probation. Finally, it is important to appreciate the potential impact of imposing a sentence of imprisonment instead of a conditional sentence. Imprisonment could have a negative impact on offenders, including the disruption of their family life, loss of employment opportunities, and mental health challenges. These considerations could be used to support the argument for a conditional sentence, especially where offenders are first-time offenders and pose limited risks to the community. In conclusion, section 742.2(1) of the Criminal Code of Canada is an essential consideration for lawyers and judges. It restricts the use of conditional sentences based on the nature of the offense, and this has significant implications for the justice system and offenders. Given these implications, lawyers must carefully consider the crimes for which their clients have been convicted, the potential for sentencing disparities, and the nature of the offender. Possible alternative sentencing options should be explored, recognizing the adverse effects of imprisonment on both offenders and their families.