INTRODUCTION AND BRIEF DESCRIPTION
Information about previous convictions shall not be included in an offense for which a greater punishment may be imposed.
SECTION WORDING
789(2) No information in respect of an offence for which, by reason of previous convictions, a greater punishment may be imposed shall contain any reference to previous convictions.
EXPLANATION
Section 789(2) of the Criminal Code of Canada pertains to the way in which information is provided about an offender's previous criminal convictions in relation to an offence for which they may be charged. Essentially, the section prohibits any mention of past convictions that may increase the severity of the punishment prescribed for the current offence. The rationale behind this provision is to ensure that an individual is not unfairly punished or prejudiced due to their past criminal history. It aims to prevent a situation where a person is sentenced more harshly for their current offence simply because they have a history of prior convictions. Without this section, the court may be swayed by a defendant's previous criminal history, and this could lead to disproportionate or unjust sentencing. This provision applies explicitly to certain offences, which carry a greater punishment due to previous convictions, such as theft, assault, and fraud. In these cases, the prosecution cannot introduce any evidence of prior convictions at trial or in pre-trial proceedings. However, in other cases where previous convictions do not directly impact the sentence for the current offence, such information may still be disclosed by the prosecution. Overall, section 789(2) serves to safeguard the principles of fairness and equity in the criminal justice system. It ensures that defendants are held accountable for their current offence alone, rather than being penalized more harshly for their past criminal history.
COMMENTARY
Section 789(2) of the Criminal Code of Canada is a provision aimed at protecting the rights of individuals who have been convicted of a crime in the past. It stipulates that any information relating to a previous conviction shall not be included in the charges for an offence for which a greater punishment may be imposed. The purpose of this provision is to ensure that a person is not prejudiced or unfairly punished due to their previous convictions. In essence, section 789(2) seeks to prevent the practice of using an individual's criminal history to enhance or increase their sentence for a current crime. This is important as it recognizes that every individual deserves a fair trial, regardless of their past mistakes. The intention of section 789(2) is to prevent the use of an accused person's past against them in a manner that infringes on their rights and creates an unfair prejudice. The provision recognizes that accused persons should not be treated harshly or excessively punished because of their past convictions, but rather, they should be dealt with on the basis of the current offence for which they stand charged. Section 789(2) has a significant impact on the criminal justice system as it promotes fairness and equality. Without this provision, individuals with a history of convictions would be subjected to additional punishment, even if the current crime they are accused of is not related to their previous convictions. This would not only be unjust but also create an environment where recidivism is encouraged, as individuals would be unfairly punished for their past mistakes. Furthermore, section 789(2) also recognizes the importance of rehabilitation in the criminal justice system. By preventing the use of past convictions to enhance sentences, the provision creates an opportunity for people to reform and break the cycle of criminal behavior. Instead of being subjected to excessive punishment, individuals are afforded the chance to take responsibility for their actions and move forward in a positive direction. In conclusion, section 789(2) of the Criminal Code of Canada is a critical provision that protects the rights of individuals in the criminal justice system. It recognizes that everyone deserves a fair trial regardless of their past mistakes and is committed to promoting equality and rehabilitation. By preventing the use of an individual's criminal history to enhance their sentence for a current crime, section 789(2) helps to create a more just and equitable criminal justice system.
STRATEGY
Section 789(2) of the Criminal Code of Canada poses a challenge for both prosecutors and defense attorneys as it limits the information that can be presented in court regarding previous convictions of an accused person. This section aims to prevent the previous convictions from influencing the outcome of the current trial and ensure that any verdict made is solely based on the presented evidence. However, this provision also presents strategic considerations and challenges that lawyers must navigate. This essay discusses some strategic considerations and strategies that could be employed when dealing with section 789(2) of the Criminal Code of Canada. One strategic consideration is the timing of the challenge to the admissibility of previous convictions. The defense counsel may challenge the admissibility of previous convictions under section 789(2) before or after the crown introduces evidence of the previous conviction. If the challenge is made before the evidence is presented, the prosecution may be unable to present the evidence unless they can convince the judge that the evidence is relevant and probative beyond the previous conviction. On the other hand, if the challenge is made after the evidence has been presented, the crown may have already gained an advantage in the trial. Therefore, the timing of the challenge is crucial to both the prosecution and the defense. Another strategic consideration is the use of collateral evidence. Section 789(2) limits the admissibility of evidence relating to previous convictions of the accused, but it does not restrict the use of other evidence that may be relevant to the current charge. This could include evidence of the accused's behavior before or after the incident, or evidence of the accused's motive for committing the crime. Defense counsel should, therefore, consider using collateral evidence to challenge the prosecution's case without interfering with section 789(2). Additionally, defense counsel may use plea bargaining as a strategy to avoid triggering section 789(2). Plea bargaining is a pre-trial negotiation between the prosecution and defense that involves a concession by the accused to plead guilty to a lesser charge in exchange for a lighter sentence. If the accused agrees to plead guilty to a lesser charge, the prosecution may not need to present evidence of previous convictions that would trigger section 789(2). Another strategy that both the prosecution and defense may use is to seek a jury waiver. Section 789(2) only applies when the trial is heard by a judge and jury. Therefore, if both parties agree to waive their right to a jury trial, section 789(2) would not apply. The accused would be tried by a judge alone who may consider the previous convictions as part of the sentence. The prosecution may also use the Notice of Intent to Seek Greater Punishment Act (NISGPS) as a strategy to introduce evidence of previous convictions without triggering section 789(2). If the crown files a notice under NISGPS, they can present evidence of the previous conviction, and the judge must impose a longer sentence that the accused would have received if section 789(2) had applied. In conclusion, section 789(2) of the Criminal Code of Canada limits the admissibility of evidence of previous convictions of an accused person. This section presents strategic considerations that lawyers must navigate in both prosecution and defense. The timing of the challenge to the admissibility of evidence, the use of collateral evidence, plea bargaining, jury waiver, and NISGPS are some of the strategies that lawyers may employ when dealing with section 789(2) of the Criminal Code of Canada. Therefore, lawyers must carefully evaluate their options and choose the best strategy that would protect their client's interest.