Criminal Code of Canada - section 753(1.1) - Presumption

section 753(1.1)

INTRODUCTION AND BRIEF DESCRIPTION

This section provides a presumption that certain conditions have been met for a repeat offender convicted of a primary designated offence.

SECTION WORDING

753(1.1) If the court is satisfied that the offence for which the offender is convicted is a primary designated offence for which it would be appropriate to impose a sentence of imprisonment of two years or more and that the offender was convicted previously at least twice of a primary designated offence and was sentenced to at least two years of imprisonment for each of those convictions, the conditions in paragraph (1)(a) or (b), as the case may be, are presumed to have been met unless the contrary is proved on a balance of probabilities.

EXPLANATION

Section 753(1.1) of the Criminal Code of Canada deals with the sentencing of individuals who have been convicted of primary designated offences. These offences are serious crimes such as murder, sexual assault, and robbery. The section states that if the court is satisfied that the offender has been previously convicted of a primary designated offence at least two times and has received a sentence of at least two years of imprisonment for each of those convictions, then certain conditions for sentencing are presumed to have been met unless the contrary is proved on a balance of probabilities. The conditions that are presumed to have been met are contained in paragraph 753(1)(a) or (b), depending on the circumstances of the case. These conditions relate to the protection of society and the rehabilitation of the offender. Paragraph (a) requires that the court be satisfied that the offender's release would endanger the safety of the community, while paragraph (b) requires the court to be satisfied that the offender is likely to commit another primary designated offence unless adequate supervision and control are provided. The purpose of this section is to ensure that individuals who have a history of committing serious crimes are not released back into society without adequate supervision and control. By creating a presumption that certain conditions have been met, the section shifts the burden of proof onto the offender to demonstrate that they are not a risk to the community and are capable of being rehabilitated. This is intended to protect the safety of the community and to prevent future crimes from being committed. It is also consistent with the principles of proportionality and deterrence, which are key elements of the criminal justice system in Canada.

COMMENTARY

Section 753(1.1) of the Criminal Code of Canada is an interesting provision that highlights the importance of prior convictions in the criminal justice system. The provision deals with cases where an offender has been convicted previously of a primary designated offense and is now facing a conviction for a similar offense. In such cases, the court is permitted to take into account the prior convictions when determining the appropriate sentence to impose. This provision creates a rebuttable presumption that the offender, if convicted, should be subject to either a lengthy term of imprisonment or strict community supervision. This presumption arises when two prerequisites are satisfied. The first is that the current offense is a primary designated offense that carries a maximum sentence of two years or more. The second is that the offender has previously been convicted at least twice of a similar primary designated offense and was sentenced to at least two years of imprisonment for each of those convictions. The consequences of the presumption created by this provision are significant. If the court is satisfied that the two prerequisites are met, then the offender is subject to a presumption that they are not eligible for community supervision and that a lengthy term of imprisonment is the appropriate sentence. However, the presumption is rebuttable, which means that the offender has an opportunity to present evidence to contradict the presumption. One implication of this provision is that it signals a shift towards a tougher approach to sentencing in cases involving serious repeat offenders. The provision recognizes the persistent nature of certain types of criminal offenses and the need to prevent recidivism. The presumption created by this section reflects the view that harsher sentences are necessary to deter repeat offenders from committing further crimes and to protect society from their actions. Critics of this provision argue that it is overly harsh and does not take into account the individual circumstances of the offender or their potential for rehabilitation. They argue that the focus should be on finding ways to address the root causes of criminal behavior and to support offenders in making positive changes in their lives, rather than simply punishing them with lengthy terms of imprisonment. However, supporters of the provision argue that previous attempts at rehabilitation have failed, and that tougher sentencing measures are needed to protect society from dangerous offenders. They argue that the presumption created by this section is necessary to ensure that repeat offenders face serious consequences for their actions, which will deter them from committing further crimes and protect the public from harm. In conclusion, Section 753(1.1) of the Criminal Code of Canada creates a rebuttable presumption that an offender with prior convictions for similar offenses should be subject to a lengthy term of imprisonment. While this provision has its critics, it reflects a tougher approach to sentencing in cases involving serious repeat offenders and recognizes the need to protect society from their actions. Ultimately, it is up to the courts to determine whether the presumption should apply in each individual case, taking into account the circumstances of the offender and the nature of the offense.

STRATEGY

Section 753(1.1) of the Criminal Code of Canada is an important provision that outlines the conditions for the imposition of a long-term offender designation. A long-term offender designation allows for a combination of incarceration and community supervision of offenders who are considered high-risk to reoffend. The designation is imposed after a hearing that takes place at the end of the offender's sentence. This provision is important because it offers an opportunity for the justice system to manage high-risk offenders effectively. However, there are also some strategic considerations that should be taken into account when dealing with this section of the Criminal Code. One of the main considerations is the burden of proof. According to the provision, the conditions in paragraph (1)(a) or (b) are presumed to have been met unless the contrary is proved on a balance of probabilities. This means that the onus is on the defence to prove that the offender does not meet the conditions for a long-term offender designation. Therefore, if the defence does not present persuasive evidence, the court will be likely to impose a long-term offender designation. To address this challenge, defence counsel should do everything possible to challenge the prosecution's evidence and prove that the offender does not meet the conditions for a long-term offender designation. This may involve conducting thorough investigations, procuring expert opinions, and presenting mitigating evidence to demonstrate that the offender can be safely and effectively rehabilitated without a long-term offender designation. Another strategic consideration is the potential consequences of a long-term offender designation. A long-term offender designation can result in a sentence of imprisonment followed by a lengthy period of community supervision. This can have significant impacts on the offender's life, they may face difficulties in finding employment, securing housing, and living a normal life. Thus, it is important to carefully consider the potential impacts of a long-term offender designation before proceeding with a hearing. To address this challenge, the defence may consider negotiating an alternative outcome with the prosecution. For example, the defence may suggest a Conditional Sentence Order (CSO), which is a type of sentence that allows an offender to serve their sentence in the community under certain conditions. A CSO may be a better option for some offenders as it allows them to remain in the community, maintain their employment and other social connections, and receive appropriate treatment. Finally, effective representation is crucial in cases involving a long-term offender designation. A skilled defence counsel can navigate the complex legal and procedural requirements of the Criminal Code, conduct thorough investigations, present persuasive evidence, and argue persuasively on behalf of their client. In conclusion, Section 753(1.1) of the Criminal Code of Canada presents significant strategic considerations for both the defence and prosecution in cases involving a long-term offender designation. Understanding the burden of proof, potential impact of a long-term offender designation, and the importance of effective representation are all essential for a successful outcome. Employing a strategic approach that includes careful investigation, negotiations, and representation can ultimately help to ensure a fair and just outcome for all parties involved.