INTRODUCTION AND BRIEF DESCRIPTION
Section 777(2) of the Criminal Code of Canada allows for correction of sentences that are greater than what is lawfully allowed.
SECTION WORDING
777(2) Where, in proceedings to which subsection (1) applies, the court or judge is satisfied that a person was properly convicted of an offence but the punishment that was imposed is greater than the punishment that might lawfully have been imposed, the court or judge (a) shall correct the sentence, (i) where the punishment is a fine, by imposing a fine that does not exceed the maximum fine that might lawfully have been imposed, (ii) where the punishment is imprisonment, and the person has not served a term of imprisonment under the sentence that is equal to or greater than the term of imprisonment that might lawfully have been imposed, by imposing a term of imprisonment that does not exceed the maximum term of imprisonment that might lawfully have been imposed, or (iii) where the punishment is a fine and imprisonment, by imposing a punishment in accordance with subparagraph (i) or (ii), as the case requires; or (b) shall remit the matter to the convicting judge, justice or provincial court judge and direct him to impose a punishment that is not greater than the punishment that may be lawfully imposed.
EXPLANATION
Section 777(2) of the Criminal Code of Canada is a provision that is meant to ensure that an individual receives a punishment that is proportional to the offense they have committed. This section is applicable in situations where a person has been convicted of an offense and has been given a punishment that is greater than what is legally permissible. Under this section, if a court or judge determines that a person has been properly convicted of an offense but has been given a punishment that is excessive, they may either correct the sentence or remit the matter to the convicting judge, justice or provincial court judge for the imposition of a sentence that is within lawful limits. If the punishment is a fine, the court may impose a fine that is not higher than the legally acceptable maximum fine. Similarly, if the punishment is imprisonment, and the person has not yet served a term of imprisonment equal or greater than the maximum term of imprisonment that could have been imposed, the court may impose imprisonment that is not beyond the maximum sentence that could have been awarded. If the punishment involves both a fine and imprisonment, the court may impose a punishment in accordance with either subparagraph (i) or (ii), as applicable. Overall, section 777(2) seeks to ensure that the punishment awarded to an individual is fair and proportionate to their offense, which ensures that the criminal justice system operates in a just and equitable manner.
COMMENTARY
Section 777(2) of the Criminal Code of Canada is a provision that allows for the correction of sentences that are greater than what should have been legally imposed. The provision is an essential aspect of justice that protects individuals against disproportionate punishments. The section applies to proceedings where a person has been properly convicted of an offence, but the punishment that was imposed is greater than what should have been lawful. The provision distinguishes between the punishments of fines and imprisonment. In cases where the punishment is a fine, the court can correct the sentence by imposing a fine that does not exceed the maximum fine that might lawfully have been imposed. In cases where the punishment is imprisonment, and the person has not served a term of imprisonment under the sentence that is equal to or greater than the term of imprisonment that might lawfully have been imposed, the court can impose a term of imprisonment that does not exceed the maximum term of imprisonment that might lawfully have been imposed. Where the punishment is a fine and imprisonment, the court can impose a punishment in accordance with subparagraph (i) or (ii), as the case may require. Additionally, the provision gives the court the power to remit the matter to the convicting judge, justice, or provincial court judge and direct them to impose a punishment that is not greater than what they are licensed to impose. The provision is an important aspect of justice, as it ensures that the punishment meets the nature and extent of the crime committed. The judiciary is tasked with the responsibility of ensuring that individuals convicted of an offence are punished according to the law. Within this framework, the sentence imposed should not be disproportionately harsh or lenient in comparison to the nature and extent of the crime committed. Therefore, Section 777(2) serves to correct any erroneous judgments by courts that are based on emotion, prejudice, or personal biases. The provision ensures that the punishment reflects the gravity and nature of the offence committed. Additionally, the Criminal Code of Canada also reinforces the principle of proportionality and equity in justice. The principle of proportionality requires that the punishment imposed should bear a relationship with the degree of wrong committed. If the punishment exceeds what is necessary to redress the wrong, the decision is considered arbitrary and unjust. The courts must, therefore, take into account all the relevant factors before imposing a sentence. In conclusion, Section 777(2) of the Criminal Code of Canada is a vital provision in the Canadian justice system. The provision ensures that the punishment is proportional to the crime committed and provides a mechanism to correct erroneous judgments. It reinforces the principle of proportionality and equity in the dispensing of justice. By correcting disproportionality in sentences, the provision strengthens the public's faith in the justice system. The provision, therefore, is essential to ensuring justice and legal equity in society.
STRATEGY
Section 777(2) of the Criminal Code of Canada provides a mechanism for correcting a sentence that was imposed on a person that is greater than what was legally permissible. This section can be used to appeal a sentence, but it is important to approach this process strategically. Lawyers and defendants have to be aware of all the factors that could influence the outcome of their appeal, and they have to come up with an effective strategy that addresses all the relevant issues. Some of the strategic considerations that should be taken into account when dealing with this section of the Criminal Code of Canada include the following. First, the appellant must understand the range of possible outcomes that could result from the appeal. This means that the appellant's lawyer should outline the available options and their potential consequences before commencing the appeal process. Depending on the circumstances of the case, the appellant may choose to request a reduced sentence or to have the court remit the matter to the convicting judge, justice, or provincial court judge and direct them to impose a punishment that is not greater than the punishment that may be lawfully imposed. In some cases, a reduced sentence may not be possible due to the nature of the offense, the number of prior convictions, or other factors. Second, the appellant should understand the strengths and weaknesses of their case. This requires an analysis of the legal and factual issues that are relevant to the case. The appellant's lawyer should scrutinize the sentencing decision and identify any legal errors or misinterpretations of the law. They should also examine the factual findings made by the sentencing judge and assess their accuracy and relevance. If there were errors in the law or factual findings, the appellant may have a stronger case for a reduced sentence. Third, the appellant should understand the procedural requirements for appealing a sentence under Section 777(2). This includes deadlines for filing an appeal, the documents and evidence that must be submitted, and the standard of review that will be applied by the appellate court. The failure to comply with the procedural requirements could lead to the dismissal of the appeal. Fourth, the appellant should consider the impact of the appeal on their reputation, record, and future prospects. If the grounds for appeal are weak or speculative, the appeal may be seen as a reflection of the appellant's lack of remorse or acceptance of responsibility. This can have negative consequences for their record and reputation. On the other hand, a successful appeal can demonstrate that the appellant is committed to rehabilitation and can help to mitigate the stigma and consequences of the original offense. Some strategies that could be employed when dealing with Section 777(2) include the following. - Conducting a thorough review of the sentencing decision to identify any errors in law or misinterpretations of the facts. - Researching comparable cases to assess the range of sentences that may be lawfully imposed in similar circumstances. - Preparing a persuasive written submission that explains why the sentence is excessive and argues for a reduced sentence or a remittal. - Providing evidence of rehabilitation, such as evidence of participation in counseling, therapy, or treatment programs. - Highlighting any mitigating factors that were not adequately considered in the original sentencing decision. - Demonstrating that a reduced sentence would not compromise public safety or the administration of justice. - Providing letters of support from family, friends, employers, or community members that show the positive aspects of the appellant's character and their contributions to society. Overall, appealing a sentence under Section 777(2) of the Criminal Code of Canada requires careful planning, effective legal strategies, and a deep understanding of the relevant legal and factual issues. By taking a strategic approach to their appeal, appellants can increase their chances of obtaining a favorable outcome and achieve a reduced sentence that is proportionate to the offense.