section 746

INTRODUCTION AND BRIEF DESCRIPTION

This section outlines the calculation of imprisonment served for certain sentences, including including time spent in custody prior to sentencing.

SECTION WORDING

746 In calculating the period of imprisonment served for the purposes of section 745, 745.1, 745.4, 745.5 or 745.6, there shall be included any time spent in custody between (a) in the case of a sentence of imprisonment for life after July 25, 1976, the day on which the person was arrested and taken into custody in respect of the offence for which that person was sentenced to imprisonment for life and the day the sentence was imposed; or (b) in the case of a sentence of death that has been or is deemed to have been commuted to a sentence of imprisonment for life, the day on which the person was arrested and taken into custody in respect of the offence for which that person was sentenced to death and the day the sentence was commuted or deemed to have been commuted to a sentence of imprisonment for life.

EXPLANATION

Section 746 of the Criminal Code of Canada outlines the calculation of the period of imprisonment that has been served by an offender for the purposes of various sections of the Criminal Code. This provision applies to cases where an offender has been sentenced to life imprisonment or where a death sentence has been commuted to a life sentence. This section mandates that any time spent in custody between the day of arrest and the day the sentence was imposed or commuted should be included in the calculation of the period of imprisonment served by the offender. This means that the period of custody that an offender spent waiting for trial or sentencing would be credited towards their overall time served. The purpose of this provision is to ensure that offenders are not held in custody for longer than necessary and that they receive due credit for time already served. This can be important in cases where an offender has been awaiting trial or sentencing for an extended period of time, as it can ultimately reduce their overall sentence. Overall, section 746 serves to ensure that the calculation of imprisonment periods is done accurately, fairly, and in line with the principles of justice and due process.

COMMENTARY

Section 746 of the Criminal Code of Canada pertains to the calculation of imprisonment served for the purposes of specific sections related to life imprisonment and commuted death sentences. This section states that any time spent in custody between the day of arrest and the day of sentencing must be included in the calculation of time served. The inclusion of this section in the Criminal Code underscores the importance of proportionality in sentencing. It ensures that a person is not held in custody arbitrarily, and that time spent in custody before sentencing is credited towards their ultimate sentence. The significance of this provision cannot be overstated, given that pre-trial detention can amount to months or even years spent in custody. By counting this time towards the eventual sentence, Section 746 mitigates the effects of indefinite and unjust pre-trial detention. Furthermore, Section 746 applies to individuals who have been sentenced to life imprisonment after 1976, a period of time that marked significant changes in the administration of criminal justice in Canada. Prior to this, life sentences were mandatory for certain offences, and the only means of reducing the sentence was through a prerogative of mercy or executive clemency. The introduction of Section 745 allowed for the possibility of parole after a designated period of time, and introduced a mechanism for review of life sentences. Section 746 is thus consistent with the overall theme of reform introduced by the Criminal Code after 1976, and serves to provide greater accountability and transparency in the sentencing process. Moreover, this section is critical for ensuring that the sentences handed down by the criminal justice system are not excessively punitive or inhumane. When courts impose sentences with lengthy terms of imprisonment, they must be mindful of the effects of such sentences on the individual, their families, and society as a whole. Lives can be irrevocably damaged, and in some cases, destroyed by excessively harsh sentences. By providing credit for time served in custody, Section 746 helps to mitigate the harshness of such sentences. Despite its importance, Section 746 is not without its limitations. Notably, it applies only to individuals sentenced to life imprisonment or whose death sentences have been commuted. Those who receive lesser sentences, such as determinate sentences for non-violent offences, may not have their time in custody credited towards their sentence. This places a disproportionate burden on those who are most marginalized or vulnerable in society, as they are more likely to be detained pre-trial or to receive lengthy sentences without parole eligibility. In conclusion, Section 746 of the Criminal Code of Canada provides important safeguards for individuals facing lengthy sentences of imprisonment. By requiring that time spent in custody be credited towards a sentence, it ensures that sentences are proportional and just, and that pre-trial detention is not indefinite or arbitrary. However, the limitations of this section highlight the need for broader reform of the criminal justice system, which should address issues of over-incarceration and disproportionate sentencing.

STRATEGY

Section 746 of the Criminal Code of Canada is an important provision that pertains to the calculation of imprisonment periods for certain offences. It mandates the inclusion of time spent in custody towards the calculation of the sentence served by a convicted person. This section is critical in determining the eligibility of convicted persons for parole under certain provisions of the Criminal Code of Canada. As such, it is essential for legal practitioners to understand the strategic considerations when dealing with this section of the Criminal Code. One important strategic consideration when dealing with section 746 is the timing of the sentence. In cases where a sentence is not imposed immediately after arrest, legal practitioners should consider filing an application for a reduction of sentence. This could be done by arguing that the accused person has already served a significant portion of the sentence while in custody awaiting trial. Such an argument would be relevant if the offence carries a mandatory minimum sentence, as the accused person would have already served part of the sentence before being sentenced. This could potentially lead to a reduction in the sentence the accused person would have to serve. Another strategic consideration when dealing with section 746 is the use of alternative sentencing options. Legal practitioners should consider alternative sentencing options, such as house arrest, community service, or rehabilitation programs, in cases where the accused person has already served a significant portion of the sentence while in custody awaiting trial. These alternative sentencing options could be advanced as a way to reduce the length of time that the accused person would have to serve in prison. Another important strategic consideration when dealing with section 746 is the use of plea bargaining. Plea bargaining involves negotiating with the prosecution to reduce the charges against an accused person in exchange for a guilty plea. This could be a useful strategy in cases where the accused person has already spent a significant amount of time in custody. By pleading guilty to a lesser charge, the accused person could potentially avoid a lengthy prison sentence and be eligible for parole sooner. In conclusion, there are several strategic considerations when dealing with section 746 of the Criminal Code of Canada. Legal practitioners should carefully consider the timing of the sentence, the use of alternative sentencing options, and plea bargaining as strategies for reducing the length of time that an accused person would have to serve in prison. By carefully considering these strategies, legal practitioners can help their clients achieve the best possible outcome in their case.