INTRODUCTION AND BRIEF DESCRIPTION
A conditional sentence order continues running while the offender is detained under an order to detain in custody.
SECTION WORDING
742.6(12) A conditional sentence order referred to in subsection (10) starts running again on the making of an order to detain the offender in custody under subsection 515(6) and, unless section 742.7 applies, continues running while the offender is detained under the order.
EXPLANATION
Section 742.6(12) of the Criminal Code of Canada refers to the conditions surrounding a conditional sentence order. A conditional sentence order is a type of sentence that allows an offender to serve their sentence in the community, rather than in jail. This type of sentence is only available to offenders who have committed non-violent offenses and have received a sentence of less than two years. The section states that if an offender who is serving a conditional sentence order is detained in custody under subsection 515(6) of the Criminal Code, their sentence will start running again once they are released from custody. This means that their conditional sentence order will continue, despite the time they spent in custody. The section also notes that unless section 742.7 applies, the offender's sentence will continue running while they are detained under the order. Section 742.7 refers to situations where an offender is detained in custody for another offense or for a breach of their conditional sentence order. In these instances, the offender's sentence will be interrupted, and they will have to serve the remainder of their sentence in jail. Overall, section 742.6(12) aims to provide clarity regarding the conditions surrounding a conditional sentence order for offenders. By outlining the circumstances under which a sentence will continue running or be interrupted, the section aims to ensure that offenders serve their sentence in a fair and just manner.
COMMENTARY
Section 742.6(12) of the Criminal Code of Canada provides important guidance on the operation of conditional sentence orders. A conditional sentence order is a type of sentence that allows an offender to serve their sentence in the community subject to certain conditions being met. These conditions may include things like curfews, mandatory counseling, and regular check-ins with a probation officer. This particular subsection specifies what happens to a conditional sentence order if the offender is detained in custody under subsection 515(6) of the Criminal Code. Section 515(6) allows a judge to order that an accused person be held in custody pending trial if the judge believes that there is a risk that the accused will fail to attend court, commit another offence, or interfere with the administration of justice. When an offender is detained in custody under subsection 515(6), their conditional sentence order "starts running again" once they are released from custody. This means that the time spent in custody does not count towards their conditional sentence order. The order continues to run until it has been fully served, subject to certain exceptions (discussed below). The purpose of this subsection is to ensure that offenders who are subject to a conditional sentence order are held accountable for their actions, even if they are temporarily detained in custody. It also provides a clear rule for how the time spent in custody should be treated in relation to the conditional sentence order. There are some important caveats to this rule. First, if the offender is detained in custody under subsection 515(10), which allows for detention pending appeal, the conditional sentence order does not start running again until the appeal is concluded. This ensures that the offender is not penalized for exercising their right to appeal. Second, if the offender is later found guilty of breaching their conditional sentence order, the time spent in custody can be taken into account when determining the appropriate sentence for the breach. This is because a breach of a conditional sentence order is a separate offence under the Criminal Code. Overall, the operation of conditional sentence orders can be complex and it is important for judges, lawyers, and offenders to understand how they work. Section 742.6(12) provides a clear rule for how the time spent in custody should be treated in relation to the conditional sentence order, which promotes consistency, fairness, and accountability in the criminal justice system.
STRATEGY
Section 742.6(12) of the Criminal Code of Canada stipulates that a conditional sentence order will recommence if an offender is detained in custody. This provision creates strategic considerations for both offenders and defense counsel in terms of how to deal with a conditional sentence order. Some strategies that could be employed include: 1. Avoiding Breach of the Conditional Sentence Order The most straightforward approach is to avoid detention that could cause the conditional sentence order to restart. Offenders should ensure that they comply with the terms of their conditional sentence order and avoid actions that could lead to their detention. 2. Applying for Bail Pending Appeal If an offender has been detained after being convicted, they may have the option of applying for bail pending appeal. If successful, the offender can be released from custody and continue to serve their conditional sentence order. However, this option is only available for offenders who have filed an appeal, and it requires the offender to convince the court that detention is not necessary pending the outcome of their appeal. 3. Negotiating a Conditional Sentence Order Some offenders and defense counsel may decide that the possibility of detention is too great a risk and may prefer to negotiate a sentencing arrangement that does not involve a conditional sentence order. This may include negotiating a plea deal with the Crown that results in a different kind of sentence, such as a term of imprisonment or a suspended sentence. 4. Seeking a Stay of Proceedings If an offender has been charged but not yet convicted, they may be able to apply for a stay of proceedings in order to avoid the risk of detention. A stay of proceedings will halt the legal proceedings against the accused, and if it is granted, the accused will not be tried or sentenced. 5. Seeking a Substitutional Order In some cases, offenders may be able to seek a substitutional order in lieu of a conditional sentence order. A substitutional order allows an offender to serve their sentence in the community rather than in custody. Such orders are only available for certain offenses and require the court to be satisfied that the offender poses no threat to the community. Overall, section 742.6(12) of the Criminal Code of Canada creates a risk for offenders who have been sentenced to a conditional sentence order. However, by carefully considering their options and employing the appropriate strategies, offenders and defense counsel can minimize this risk and ensure that the offender is able to serve their sentence in the most appropriate manner.