section 742.6(15)

INTRODUCTION AND BRIEF DESCRIPTION

If a breach allegation is withdrawn or dismissed, or if the offender had a reasonable excuse for the breach, certain periods are deemed to be time served under the conditional sentence order.

SECTION WORDING

742.6(15) If the allegation is withdrawn or dismissed or the offender is found to have had a reasonable excuse for the breach, the sum of the following periods is deemed to be time served under the conditional sentence order: (a) any period for which the running of the conditional sentence order was suspended; and (b) if subsection (12) applies, a period equal to one half of the period that the conditional sentence order runs while the offender is detained under an order referred to in that subsection.

EXPLANATION

Section 742.6(15) of the Criminal Code of Canada essentially deals with the issue of conditional sentence orders and how time is served in the event that the allegation is withdrawn or dismissed, or when the offender is found to have a reasonable excuse for the breach. Under Canadian law, a conditional sentence order is a type of sentence that allows an offender to serve their sentence in the community, rather than in a correctional institution. Essentially, rather than being sent to jail, the offender is allowed to serve their sentence in the community under certain conditions. These conditions may include things like house arrest, curfews, and community service. However, if a person violates the terms of their conditional sentence order, they can be sent back to jail to serve the remainder of their sentence. This is where section 742.6(15) comes into play. If the allegation is withdrawn or dismissed, or the offender has a reasonable excuse for breaching the terms of their order, then the time that they spent on house arrest or other conditions is considered time served towards their sentence. Essentially, this section ensures that an offender is not unfairly punished for breaching the terms of their conditional sentence order if they had a valid reason for doing so. It is important to note that this section only applies in certain circumstances, and an individual who has violated their conditional sentence order will not automatically have their time served reduced unless one of the conditions outlined in section 742.6(15) is met.

COMMENTARY

Section 742.6(15) of the Criminal Code of Canada is a provision that allows for certain periods of detention to be deemed as time served under a conditional sentence order if allegations are withdrawn or dismissed or if the offender had a reasonable excuse for the breach. The provision is an important one because it recognizes that the purpose of sentencing is not solely punitive, but also has a rehabilitative and restorative aspect to it. By deeming certain periods of detention as time served, the provision acknowledges that the offender may have been undergoing treatment or other rehabilitative measures during that time, and that their progress towards reintegration into society should be recognized. The provision applies in two situations: first, if the running of the conditional sentence order was suspended, then the period of suspension is deemed to be time served. This recognizes that the period of suspension may have allowed the offender to obtain treatment, attend counseling, or make other positive changes in their life that would help ensure they do not re-offend. By deeming this period as time served, the provision acknowledges that the offender was still under the conditional sentence order during this time and working towards fulfilling its conditions. Second, if the offender is detained under an order referred to in subsection (12) of the Code, then a period equal to one half of the period that the conditional sentence order runs is deemed to be time served. Subsection (12) refers to situations where an offender is detained as a result of a breach of a condition of a conditional sentence order. This detention may be as a result of a warrant being issued, or as a result of being held in custody pending a hearing on the breach. By deeming a period of detention as time served, the provision recognizes that the offender may have been undergoing treatment, or attending programs aimed at rehabilitating them, during this time. This provision is important because it recognizes that the purpose of sentencing is not solely to punish the offender, but also to rehabilitate them and reintegrate them into society. By recognizing that periods of detention may also be used for rehabilitation purposes, the provision helps ensure that offenders are not punished twice for the same breach, while also recognizing that the offender may have made progress towards rehabilitation during that time. This approach is in line with the principles of restorative justice, which emphasizes the positive changes that can be made by an offender in order to make amends for their actions. In conclusion, Section 742.6(15) of the Criminal Code of Canada is an important provision because it recognizes that periods of detention under a conditional sentence order may also be used for rehabilitative purposes. By deeming certain periods as time served, the provision recognizes the progress that an offender may have made towards rehabilitation during that time, which helps to ensure that the purpose of sentencing is not solely punitive, but also has a restorative and rehabilitative aspect to it. This approach is in line with the principles of restorative justice, which focuses on positive changes that can be made by an offender to make amends for their actions and reintegrate into society.

STRATEGY

Section 742.6(15) of the Criminal Code of Canada provides a mechanism for offenders who have breached their conditional sentence orders to receive credit for time served under certain circumstances. As with any provision of the Criminal Code, there are strategic considerations that must be taken into account when dealing with this section. One of the primary strategic considerations when dealing with section 742.6(15) is whether to attempt to have the allegation withdrawn or dismissed or to argue that the offender had a reasonable excuse for the breach. If successful, this would allow the offender to receive credit for time served under the conditional sentence order. In order to maximize the chances of success in this regard, it may be necessary to conduct a thorough investigation into the circumstances surrounding the breach and to gather evidence and witness statements that support the argument that the offender had a reasonable excuse or that the allegation should be withdrawn or dismissed. This may require the assistance of legal counsel and other professionals, such as private investigators or expert witnesses. Another strategic consideration when dealing with section 742.6(15) is whether to seek to have the running of the conditional sentence order suspended or to argue that subsection (12) applies. Subsection (12) provides that if an offender is detained under an order made under section 515 (bail provisions) or section 525 (review of detention) of the Criminal Code, then that time will be deemed to count as time served under the conditional sentence order. To take advantage of this provision, it may be necessary to argue that the detention was unlawful or that the offender's rights were violated in some way. It may also be necessary to secure expert testimony or other evidence to support this argument. In addition to these considerations, there may be other strategic considerations that arise in the context of a particular case. For example, it may be necessary to consider whether to enter into negotiations with the prosecutor or to seek to have the matter resolved through other means, such as mediation or arbitration. It may also be necessary to consider the potential consequences of a successful application under section 742.6(15), including the impact on the offender's immigration status or professional licensing. In terms of strategies that could be employed, one potential strategy is to build a strong case for withdrawal or dismissal of the allegation or for the existence of a reasonable excuse. This could involve conducting a thorough investigation, gathering evidence and witness statements, and presenting a compelling argument to the court. Another strategy could be to seek to have the running of the conditional sentence order suspended, or to argue that subsection (12) applies. This could involve identifying any potential breaches of the offender's rights or any other factors that could support this argument. Regardless of the specific strategy employed, it is important to work closely with legal counsel and other professionals to ensure that all relevant factors are taken into account and that the best possible outcome is achieved for the client.