section 753.01(5)

INTRODUCTION AND BRIEF DESCRIPTION

This section states that if an offender is applying for a detention sentence, the court must impose it unless there is reasonable evidence that a different sentence will adequately protect the public from the offender committing a serious crime.

SECTION WORDING

753.01(5) If the application is for a sentence of detention in a penitentiary for an indeterminate period, the court shall impose that sentence unless it is satisfied by the evidence adduced during the hearing of the application that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted with or without a new period of long-term supervision will adequately protect the public against the commission by the offender of murder or a serious personal injury offence.

EXPLANATION

Section 753.01(5) of the Criminal Code of Canada is a provision related to the sentencing of offenders who have been convicted of serious offences. In cases where the application is for a sentence of detention in a penitentiary for an indeterminate period, the court must impose such a sentence unless it can be satisfied by the evidence adduced during the hearing that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted, with or without a new period of long-term supervision, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. In other words, if an offender is being considered for a sentence of detention in a penitentiary for an indeterminate period, the court must be satisfied that the offender is not likely to commit murder or serious personal injury offences in the future. If this expectation cannot be met, then the court should impose an indeterminate sentence to protect the public. This provision reflects the principle of protecting the public from dangerous offenders, which is a key objective of the sentencing regime in Canada. It recognizes that some offenders pose a significant risk to the public and that strong measures must be taken to prevent them from causing harm. At the same time, it also allows for the possibility of rehabilitation and reintegration into society, provided that adequate safeguards are in place to ensure public safety. Overall, Section 753.01(5) is an important provision in the Criminal Code of Canada because it ensures that dangerous offenders are held accountable for their actions and that the public is protected from the risk of harm.

COMMENTARY

Section 753.01(5) of the Criminal Code of Canada is a provision that regulates the sentencing process for offenders who have been convicted of certain criminal offences. It provides specific guidelines for the imposition of a sentence of detention in a penitentiary for an indeterminate period. Under this provision, the court is required to order an indeterminate sentence in cases where the application is made for such a sentence, unless the court is satisfied that a sentence for the offence that the offender has been convicted of, with or without a new period of long-term supervision, will adequately protect the public from the commission of murder or a serious personal injury offence by the offender. The application process for such a sentence is usually initiated by either the offender or the Crown. The application may be made at any time, although it is usually made towards the end of an offender's sentence. The purpose of the application is to determine whether the offender should be released from custody or should remain in custody for an indeterminate period. The provision is intended to balance the interests of the offender and the public. On the one hand, offenders have a right to be free from arbitrary detention and to have their sentences reviewed periodically to ensure that it is still necessary for them to remain in custody. On the other hand, the public has a right to be protected from dangerous offenders who pose a significant risk of reoffending. The provision recognizes that there may be circumstances where a sentence of detention for an indeterminate period is necessary for public safety. This may be the case where the offender has committed a serious offence, has a lengthy criminal history, or has demonstrated a pattern of behaviour that suggests they are likely to reoffend. However, the provision also recognizes that indeterminate sentences should not be imposed without a reasonable basis. The court is required to consider the evidence adduced during the hearing of the application, in order to determine whether there is a reasonable expectation that a sentence for the offence that the offender has been convicted of, with or without a new period of long-term supervision, will adequately protect the public from the commission of murder or a serious personal injury offence by the offender. This means that the Crown must demonstrate that there is a significant risk that the offender will reoffend and that this risk cannot be adequately managed or controlled by other means, such as a determinate sentence or long-term supervision. The offender, in turn, may present evidence to demonstrate that they have taken steps to address their underlying issues, such as drug addiction or mental health problems, and that they are not likely to reoffend if released. The provision serves an important role in the criminal justice system by ensuring that dangerous offenders are not released into the community without proper safeguards in place. At the same time, it recognizes the importance of protecting the rights of offenders and ensuring that they are not held in custody indefinitely without justification.

STRATEGY

Section 753.01(5) of the Criminal Code of Canada is a very specific provision, which deals with the possibility of imposing a sentence of detention in a penitentiary for an indeterminate period, also known as an indeterminate sentence. The provision states that, if an application is made for such a sentence, the court is obliged to impose it unless it is satisfied that there is a reasonable expectation that a sentence for the offence for which the offender has been convicted, with or without a new period of long-term supervision, will adequately protect the public against the commission by the offender of murder or a serious personal injury offence. This provision raises various strategic considerations for lawyers who are dealing with this issue. One of the first considerations is to determine whether the application for an indeterminate sentence is appropriate in the circumstances. The application is usually made in cases where the offender poses a significant risk to the public or where the offence committed is particularly heinous. In such cases, a court may be more willing to impose an indeterminate sentence, as it would provide greater protection for the public. Another strategic consideration is to ensure that a thorough and compelling argument is made to show that a determinate sentence, with or without a long-term supervision order, would adequately protect the public. This could include presenting expert evidence on the offender's prospects for rehabilitation, the level of risk posed by the offender, and the effectiveness of alternative sentencing options, such as treatment programs. Such evidence would need to be carefully crafted to address the specific concerns and risk factors in each case. To further support the argument that a determinate sentence would be sufficient, a lawyer may also consider presenting evidence of the offender's background and personal circumstances, such as their age, mental health, and family support system. Providing context for the offender's behaviour can help to humanize them and make the case for a more lenient sentence. Another strategy that may be useful is to identify and address any potential weaknesses in the prosecutor's case. This would involve conducting a thorough review of the evidence and identifying any gaps or inconsistencies that could be used to challenge the prosecution's case. For example, if the prosecution's evidence is based on the testimony of a single witness, a defence lawyer may be able to impeach that witness or present evidence that contradicts their testimony. Ultimately, the key strategic consideration when dealing with Section 753.01(5) is to present a well-prepared and persuasive case that demonstrates that a determinate sentence, with or without a long-term supervision order, would adequately protect the public. This requires a thorough understanding of the specific circumstances of each case, as well as a deep knowledge of the law and the relevant jurisprudence. By carefully crafting their arguments, taking into account the unique characteristics of each case, and addressing any weaknesses in the prosecution's case, a lawyer can increase their chances of obtaining a more lenient sentence for their client.