INTRODUCTION AND BRIEF DESCRIPTION
This section states that if an offenders sentence is replaced, it will replace the sentence previously imposed.
SECTION WORDING
753(4.2) If the application is made after the offender begins to serve the sentence in a case to which paragraphs (2)(a) and (b) apply, a sentence imposed under paragraph (4)(a), or a sentence imposed and an order made under paragraph 4(b), replaces the sentence that was imposed for the offence for which the offender was convicted.
EXPLANATION
Section 753(4.2) of the Criminal Code of Canada deals with sentencing orders for offenders who are convicted of certain offenses. The section specifies that if an application is made after an offender starts serving a sentence for a case in which paragraphs (2)(a) and (b) apply, a new sentence imposed under paragraph (4)(a) or an order made under paragraph 4(b) replaces the sentence initially imposed for the offense. Paragraphs (2)(a) and (b) refer to the provisions under section 753 for the imposition of mandatory or discretionary periods of parole ineligibility for certain offenses. In cases where these provisions apply, an offender may not be eligible for parole until they have served a specific period of their sentence. Paragraph (4)(a) allows the court to impose a sentence of imprisonment for a specified period, followed by a period of probation. Paragraph 4(b) allows the court to impose a sentence of imprisonment for a specified period, followed by a period of conditional supervision in the community. The effect of section 753(4.2) is to ensure that an offender who is granted a new sentence or order under paragraphs 4(a) or 4(b) will no longer serve the initial sentence imposed for the offense. This section provides for the automatic substitution of the new sentence or order for the old sentence, thereby ensuring that the offender is only serving one sentence for the offense. In summary, section 753(4.2) is an important provision in the Criminal Code of Canada that ensures that offenders are not unfairly burdened by multiple sentences for one offense. This section streamlines the sentencing process by providing for the automatic substitution of a new sentence or order for the old sentence once an offender has been granted a new sentence or order.
COMMENTARY
Section 753(4.2) of the Criminal Code of Canada essentially lays out the process for replacing a sentence imposed on an offender who has already begun serving their sentence for a specific offence. This provision is a critical aspect of Canada's criminal justice system as it provides a mechanism for adjusting sentences that may either be too lenient or stringent based on new evidence or circumstances that may arise. Paragraphs (2)(a) and (b) of the Code outline the criteria that must be met before an application can be made to replace a sentence. This includes, among other things, that the offender has served a portion of their sentence, or they have completed two-thirds of their sentence, whichever comes first. Additionally, the application must be made in writing to the court, outlining the new information or circumstances that have arisen since the original sentence was passed. Once an application has been made, the court has the discretion to impose a new sentence and order, replacing the original sentence for the offence for which the offender was convicted. It is important to note that the new sentence must take into account all relevant factors, including the nature of the offence, the offender's character, and the impact on the victim, among other things. This provision is essential to ensure that justice is served fairly and that the sentences imposed on offenders are reasonable, proportionate, and consistent. As we all know, there can be circumstances that arise after a sentence is passed that may make that sentence no longer appropriate. For example, new evidence may come to light that shows that the offender did not act as egregiously as initially thought. Conversely, there may be new evidence that shows that the offender's actions were far more severe than originally thought and that the initial sentence was too lenient. Section 753(4.2) provides a framework for addressing these types of situations while still ensuring that sentences reflect the seriousness of the crime and the need for societal protection. The provision also provides an opportunity for offenders to demonstrate that they have taken steps to address their behaviour and that they are committed to rehabilitation and reintegration into society. Overall, section 753(4.2) is an essential aspect of Canadian criminal justice, and it ensures the sentences imposed by the courts are reasonable and appropriate. The provision balances the rights and interests of both victims and offenders while seeking to promote public safety and a just society.
STRATEGY
Section 753(4.2) of the Criminal Code of Canada allows offenders to apply to have their sentences replaced after they have begun serving a sentence. This provision offers an avenue for offenders who may have received a harsh sentence or whose circumstances have changed to have their sentences replaced with a different one. However, the provision also presents several strategic considerations for lawyers, prosecutors, and courts. Firstly, the timing of the application is crucial. The provision allows applications to be made after the offender has begun serving the sentence. However, the timing of the application can impact the decision of the court. For example, an application made too soon after sentencing may be viewed as premature and lacking in merit. On the other hand, an application made too late may not be granted due to the fact that the offender has already served a significant portion of their sentence. Secondly, the reasons for the application are also significant. The provision allows for the sentence to be replaced if there are changes in circumstances or if there has been an error in the original sentencing. Therefore, lawyers and offenders must ensure that they have compelling reasons for the application that will convince the court to grant it. Examples of compelling reasons could be evidence of rehabilitation, changes in personal circumstances such as health issues, or evidence of errors in the original sentencing such as incorrect calculations or procedural errors. Thirdly, the original sentence must be examined critically. The provision only allows for sentences under paragraphs (2)(a) and (b) to be replaced. Paragraph (2)(a) relates to sentences of imprisonment for offenses punishable by life, while paragraph (2)(b) relates to sentences of two years or more. Therefore, lawyers must ensure that the offender's original sentence falls within these parameters. If the original sentence does not meet these criteria, applying to have it replaced under section 753(4.2) will be unsuccessful. Fourthly, the consequences of the application must also be considered. The provision allows for the replacement of the original sentence, which means that offenders must be prepared to accept the consequences of a new sentence. For example, if the original sentence was for a shorter duration, being granted a new sentence could result in a longer period of incarceration. Lawyers must carefully balance the benefits of a new sentence against the potential risks and ensure that their client understands the consequences of the application. In terms of strategies that could be employed to deal with section 753(4.2), lawyers and prosecutors could explore alternatives to incarceration. For example, they could negotiate with the court to have the offender placed on probation or community service instead of serving a sentence of imprisonment. If the original sentence was for a lengthy period, such as life imprisonment or several years, a negotiated alternative could be more appealing to the court than a new sentence. Another strategy could be to gather evidence of the offender's rehabilitation. This could include evidence of participation in educational programs, therapy or counseling, or evidence of employment. If the court is convinced that the offender has made significant efforts to rehabilitate, they may be more inclined to grant a new sentence. In conclusion, section 753(4.2) of the Criminal Code of Canada presents several strategic considerations when dealing with applications to replace sentences. Lawyers, prosecutors, and courts must carefully examine the reasons for the application, the timing of the application, the original sentence, and the consequences of the application. The use of alternative sentencing options and evidence of rehabilitation could also be useful strategies. Ultimately, the decision to replace a sentence will depend on the specific circumstances of the case and the persuasiveness of the argument put forward by the offender or their legal counsel.