section 742.6(3.2)

INTRODUCTION AND BRIEF DESCRIPTION

Proceedings regarding breaches of conditional sentence orders must have consent from either the Attorney General of the province the breach was alleged to have been committed in or the Attorney General of Canada if the proceedings were initiated by them.

SECTION WORDING

742.6(3.2) If the place where the offender is found, arrested or in custody is outside the province in which the breach is alleged to have been committed, no proceedings in respect of that breach shall be instituted in that place without (a) the consent of the Attorney General of the province in which the breach is alleged to have been committed; or (b) the consent of the Attorney General of Canada, if the proceedings that led to the issuance of the conditional sentence order were instituted by or on behalf of the Attorney General of Canada.

EXPLANATION

Section 742.6(3.2) of the Criminal Code of Canada is an important provision that outlines the rules for prosecuting offenders who breach a conditional sentence order (CSO) outside the province where the offence was originally committed. The section states that no legal proceedings can be initiated against the offender in the new province without either the consent of the Attorney General of the province where the breach occurred or the consent of the Attorney General of Canada, if the original proceedings were initiated by the federal government. This provision is important because it prevents the abuse of legal power by provincial authorities who may want to punish offenders who have breached their CSO in their province. It ensures that an offender is not prosecuted twice for the same offence, as they have already been sentenced and punished for the initial offence. It also ensures that the appropriate legal authority has jurisdiction over the case, preventing any conflicts that could arise if different provinces were to initiate legal proceedings against the offender. Furthermore, this provision emphasizes the importance of cooperation between different legal authorities and that they must work together to enforce CSOs effectively. By requiring the consent of the relevant Attorney General before prosecuting an offender outside the province, it ensures that the legal process is fair and just for all parties involved. Overall, this provision provides clarity and guidance for the prosecution of offenders who breach a CSO outside the province where the offence was committed, ensuring a fair and consistent legal approach across Canada.

COMMENTARY

Section 742.6(3.2) of the Criminal Code of Canada is an important provision that governs the enforcement of conditional sentence orders across different provinces. This provision specifies that if an offender is found, arrested or in custody outside of the province in which the breach of the conditional sentence order is alleged to have occurred, no proceedings in respect of that breach can be instituted in that place without the consent of the Attorney General of the province where the breach is alleged to have occurred or the consent of the Attorney General of Canada if the proceedings leading to the issuance of the conditional sentence order were instituted by or on behalf of the Attorney General of Canada. The purpose of this provision is to ensure that jurisdictional issues do not hinder the enforcement of conditional sentence orders and that offenders cannot evade their obligations simply by crossing provincial boundaries. By requiring the consent of the Attorney General of the province where the breach is alleged to have occurred or the Attorney General of Canada, this provision serves as a check on the use of prosecutorial discretion and provides a safeguard against arbitrary or abusive exercise of prosecutorial power. The requirement for consent from the relevant Attorney General is a necessary safeguard against abuse of prosecutorial discretion. It ensures that the breach of a conditional sentence order is only dealt with in the jurisdiction where the underlying offence occurred and prevents the offender from being subjected to multiple prosecutions for the same offence. This is in line with the principles of double jeopardy and the rule against multiple proceedings that are fundamental to the Canadian criminal justice system. Moreover, this provision recognizes the fact that conditional sentence orders involve a significant level of community supervision and support. The effectiveness of these orders is dependent on the availability of community supports and resources. By requiring that the proceedings be instituted in the province where the breach occurred, this provision supports the continuity of community supervision and ensures that the appropriate resources are available to offenders who are subject to conditional sentence orders. In addition, this provision protects the rights of offenders who are subject to conditional sentence orders. It ensures that they are not subject to arbitrary or abusive exercise of prosecutorial power, and that they are subject to fair and impartial proceedings in the jurisdiction where the breach is alleged to have occurred. This is important for maintaining public confidence in the administration of justice and ensuring that the justice system is seen as legitimate and trustworthy. In conclusion, section 742.6(3.2) of the Criminal Code of Canada is an important provision that balances the need for effective enforcement of conditional sentence orders with the protection of offenders' rights and the integrity of the justice system. By requiring the consent of the relevant Attorney General, this provision ensures that breaches of conditional sentence orders are dealt with appropriately and avoids arbitrary or abusive exercise of prosecutorial discretion. Overall, this provision supports the effective functioning of the Canadian justice system and helps to maintain public confidence in the administration of justice.

STRATEGY

Section 742.6(3.2) of the Criminal Code of Canada presents strategic considerations when dealing with a breach of a conditional sentence order outside the province where the breach is alleged to have been committed. This section outlines that the Attorney General of the province where the breach is alleged to have been committed or the Attorney General of Canada must provide consent for any proceedings in respect of the breach instituted outside the province where the breach happened. The section has several strategic implications for the prosecution and defense counsel in such cases. One of the primary strategic considerations when dealing with section 742.6(3.2) is figuring out the best jurisdiction to pursue the breach of the conditional sentence order case. The section limits where proceedings can be instituted without consent, making it important for the prosecution and defense counsel to consider whether to proceed in a province other than where the alleged breach occurred. Prosecutors may choose to commence proceedings in the province where the breach did not occur, with the Attorney General's consent, to increase their chances of securing a conviction. On the other hand, defense counsel may attempt to convince the Attorney General in the province where the offense occurred to withhold consent to commence proceedings in another province. Hence, where to file charges may depend on the strength of evidence, availability of witnesses, and the likelihood of getting consent from the Attorney General. A second strategic consideration relates to timing. Prosecutors must determine how long it will take them to secure the necessary consent from the Attorney General before they can file charges. A delay in obtaining consent could have negative consequences for the case, including witnesses becoming unavailable and a weakened position at later stages of the proceedings. Similarly, defense counsel may seek to prolong the process to create uncertainty or lesser penalties due to any prejudice resulting from an extended trial timeline. Another strategic consideration is the identity and motives of the consenting authority. If the breach of a conditional sentence order occurred in one province, the Attorney General of that province will typically have a greater motivation to prosecute the case than the Attorney General of another province. Therefore, the Attorney General of the alleged province of breach may have a more favorable view of the prosecution, and a defense lawyer can focus on convincing them not to consent to the prosecution in another province. In addition, the involvement of the Attorney General of Canada may introduce another layer of complexity into the strategic equation. Such involvement means that a high-level overview of the case is necessary, and the Attorney General of Canada, intimately aware of the case's details, must assess whether a prosecution in a different province is advantageous for them. This consideration may create more complex negotiations between the prosecutor and defense counsel on consent applications and minimize the chances of obtaining consent for the prosecution. Therefore, defense counsel will seek to identify weaknesses in the case in the hope of convincing the relevant Attorney General to withhold consent, while the prosecutor will seek to provide the necessary evidence and arguments to obtain consent, starting with a strong charge that addresses the breach allegations and potential areas of unfairness. In conclusion, section 742.6(3.2) of the Criminal Code of Canada presents several strategic considerations for both prosecutors and defense counsel. The timing, choice of jurisdiction, identity of the consenting authority, and motives behind any consent application require careful consideration by legal teams involved in the breach of conditional sentence order proposals. Carrying out an in-depth assessment of these strategic considerations is necessary to gain a successful outcome in the prosecution or defense of breach allegations.