INTRODUCTION AND BRIEF DESCRIPTION
This section allows for an application to be made regarding an offenders sentence even after the sentence has been imposed or they have begun to serve it.
SECTION WORDING
753(3) Notwithstanding subsection 752.1(1), an application under that subsection may be made after the imposition of sentence or after an offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply.
EXPLANATION
Section 753(3) of the Criminal Code of Canada is a provision that allows for the possibility of applying for early parole after a sentence has been imposed on an offender. This section is a modification of subsection 752.1(1), which outlines general provisions for applying for parole. Generally, under subsection 752.1(1), an offender can apply for parole after serving a portion of their sentence, but this must occur before the sentence is officially imposed. However, section 753(3) specifies that in some cases, it is possible to make a parole application after the sentence has already been imposed, or even after the offender has begun serving their sentence. This exception only applies to specific cases outlined in paragraphs (2)(a) and (b). Paragraph (2)(a) refers to cases in which the offender is sentenced to life imprisonment with no chance of parole for a minimum of 25 years. This type of sentence is reserved for the most serious crimes, such as first-degree murder. In such cases, the offender may apply for early parole after serving a minimum of 15 years. Paragraph (2)(b) covers cases in which the offender is sentenced to more than two years but less than life imprisonment. In these cases, the offender can apply for parole after serving one-third of their sentence. Section 753(3) provides a bit more flexibility for offenders in these specific cases, as it allows them to apply for early parole even if they miss the window to apply before their sentence is imposed. However, it's important to note that parole is not guaranteed, and a Board of Parole has the discretion to decide whether to grant parole or not. This provision simply allows offenders the opportunity to apply for an earlier release in certain circumstances.
COMMENTARY
Section 753(3) of the Criminal Code of Canada is a provision that enables offenders who have been convicted and sentenced to apply for early parole, even after the imposition of their sentence or after they begin to serve their sentence. This provision applies to cases where an offender has been sentenced to a minimum of two years, as prescribed in section 752.1(2) of the Criminal Code. The section allows for a more flexible approach towards parole, as it recognizes that offenders may change the course of their behavior or outlook during their incarceration, leading to the possibility of early parole. The provision is a reflection of the Canadian criminal justice system's focus on rehabilitation and reintegration, rather than punishment alone. It recognizes that while offenders must face the consequences of their actions, they should also be afforded the opportunity to take responsibility, transform their lives, and work towards reintegrating into society. This approach aligns with the principles of the Canadian Charter of Rights and Freedoms, which holds that individuals have certain fundamental rights, regardless of their status or actions. Section 753(3) reflects a shift away from the traditional punitive model of criminal justice towards one that emphasizes treatment, rehabilitation, and restoration. This approach is supported by research and evidence that suggests that treating offenders and addressing the root causes of their behavior is more effective than incarceration alone. It is also in line with international commitments to human rights and the promotion of restorative justice. However, the provision is not without criticism. Some argue that it may lead to the early release of dangerous offenders, putting the public at risk. There are also concerns about inconsistent application and the potential for bias or discrimination in decision-making. In response, various safeguards are in place to ensure that parole decisions are based on a thorough assessment of the offender's risk factors and potential for rehabilitation, and that the public's safety remains a top priority. Ultimately, section 753(3) of the Criminal Code reflects the Canadian criminal justice system's focus on rehabilitation and reintegration and recognizes that evidence suggests that it is not enough to simply punish offenders; they should be afforded the opportunity to address the underlying causes of their behavior and work towards becoming law-abiding and productive members of society. While challenges and concerns will undoubtedly arise, the provision serves as a reminder of the importance of upholding the principles of justice, compassion, and human rights.
STRATEGY
Section 753(3) of the Criminal Code of Canada allows for an offender to make an application for a review of their sentence even after the imposition of sentence. This section is particularly significant because it allows offenders to have a recourse in cases where their circumstances may have changed significantly or new evidence comes to light after sentencing. When dealing with Section 753(3), there are several strategic considerations that must be taken into account. Some of these considerations include the timing of the application, the basis of the application, and the potential outcome of the review. Timing of the Application One of the key considerations when dealing with Section 753(3) is the timing of the application. It is important to note that the application can be made after the imposition of sentence or after the offender begins to serve their sentence. This means that an offender can wait until they are behind bars before making an application. However, delaying the application could also work against the offender. For example, if the offender waits too long, it may be more difficult to gather evidence or establish a basis for the review. Additionally, the delay could also be viewed adversely by the court in terms of the offender's level of remorse or acceptance of responsibility. Basis of the Application The basis of the application is another important consideration. There are several grounds on which an offender can apply for a review of their sentence under Section 752.1(1). These grounds include: - Fresh evidence: The offender must show that there is new and significant evidence that could not have been presented at trial. - Change in circumstances: The offender must demonstrate that there has been a significant change in their circumstances since sentencing that justifies a review of their sentence. - Unfairness: The offender must argue that their sentence was unfairly harsh or that the court made a mistake in imposing the sentence. Choosing the right basis for the application is critical to the success of the application. For example, if the offender wants to argue that their sentence was unfairly harsh, they must be able to demonstrate why it was unfair and how the sentence is inconsistent with similar cases. Similarly, if the offender's application is based on fresh evidence, they must be prepared to present the evidence in a manner that is persuasive to the court. Potential Outcome It is also important to consider the potential outcome of the review. The court has the power to vary the sentence if it is satisfied that there are sufficient grounds to do so. However, the court also has the power to increase the sentence if it finds that the current sentence is insufficient. This means that an application for a review of a sentence can be a risky strategy if the offender does not have a strong case. If the court determines that the current sentence is appropriate, it could lead to an even harsher sentence for the offender. Strategies that could be Employed There are several strategies that could be employed when dealing with Section 753(3). Some of these strategies include: - Conducting thorough research and preparing a strong submission that outlines the basis for the application and the evidence to support it. - Consulting with experienced criminal lawyers to ensure that the application is well-structured and persuasive. - Lobbying influential public figures and organizations to support the application and build momentum for it. - Engaging the media to create public awareness and support for the application. Ultimately, the success of an application for a review of a sentence under Section 753(3) will depend on a number of factors, including the strength of the application, the timing of the application, and the overall strategy employed. It is important to approach the application with caution and to ensure that all relevant factors have been taken into account before proceeding.