INTRODUCTION AND BRIEF DESCRIPTION
This section determines whether a convicted person has committed a second or subsequent offence by considering certain earlier convictions, subject to a time limit.
SECTION WORDING
84(5) In determining, for the purpose of subsection 85(3), 95(2), 99(2), 100(2) or 103(2), whether a convicted person has committed a second or subsequent offence, if the person was earlier convicted of any of the following offences, that offence is to be considered as an earlier offence: (a) an offence under section 85, 95, 96, 98, 98.1, 99, 100, 102 or 103 or subsection 117.01(1); (b) an offence under section 244 or 244.2; or (c) an offence under section 220, 236, 239, 272 or 273, subsection 279(1) or section 279.1, 344 or 346 if a firearm was used in the commission of the offence. However, an earlier offence shall not be taken into account if 10 years have elapsed between the day on which the person was convicted of the earlier offence and the day on which the person was convicted of the offence for which sentence is being imposed, not taking into account any time in custody.
EXPLANATION
Section 84(5) of the Criminal Code of Canada dictates how previous convictions will be considered when determining sentencing for certain offences. Specifically, it deals with the calculation of whether a convicted person has committed a second or subsequent offence, which can result in more severe penalties. Under this section, if the person has been convicted of certain offences in the past, those convictions will be considered as previous offences. These offences include those related to terrorism, organized crime, sexual offences, and violent crimes committed with a firearm. Importantly, an earlier offence will not be taken into account if 10 years have passed since the conviction without any subsequent convictions. The purpose of section 84(5) is to ensure that individuals who commit these serious offences do not receive lenient sentences just because they have not been caught previously. By considering previous convictions, the justice system can more accurately assess the risk that a particular individual poses to society and deliver appropriate sentences based on their criminal history. Overall, section 84(5) highlights the importance of considering an individual's criminal history when determining their sentence. By taking into account previous convictions, the justice system can promote deterrence, protect public safety, and ensure that convicted individuals are held accountable for their actions.
COMMENTARY
Section 84(5) of the Criminal Code of Canada plays a crucial role in determining whether a convicted person has committed a second or subsequent offence. This section provides a clear definition of what offenses and circumstances are considered in determining prior convictions for the purposes of sentencing. The section specifies that if a person has been convicted earlier of any of the listed offenses, which include serious offenses such as those relating to firearms, sexual offenses, and murder, then that offense shall be considered as an earlier offense. Additionally, the section provides exceptions. If ten years have elapsed from the date of conviction of the previous offense to the current offense, then the earlier case won't be taken into account for the purpose of sentencing. The objective of Section 84(5) is to hold repeat offenders accountable and punish them accordingly. This provision ensures that people with prior criminal records are not given a reduced sentence for their subsequent offenses. It establishes an incremental sentencing regime for repeat offenders, which takes into account their previous convictions and determines the extent of punishment. The section is intended to ensure that sentencing reflects the severity of the crime and is proportionate to the degree of culpability, which reflects the key principles of criminal justice. By setting out specific criteria, the provision ensures that the justice system operates fairly and effectively while ensuring the safety and security of the general public. However, it's also important to consider that this provision can lead to some significant impacts on convicted persons. For example, an earlier conviction could significantly enhance the sentence for the subsequent offense, which may result in a harsher punishment, higher fines, or longer prison sentences. Additionally, the provision does not take into account the individual circumstances of the person involved, such as their background and motivations. It's a broad-brush approach that treats every case and every person the same, which may not always produce the most just outcomes. In conclusion, Section 84(5) of the Criminal Code of Canada provides a clear and concise definition of what offenses and circumstances are considered in determining prior convictions for sentencing purposes. While it plays a crucial role in the administration of justice and law enforcement, it's important to take into account individual circumstances and ensure that justice is being served, and that the punishment fits the crime.
STRATEGY
Section 84(5) of the Criminal Code of Canada outlines how previous criminal convictions are considered in the determination of whether a convicted person has committed a second or subsequent offence. Given the impact that an earlier conviction can have on sentencing outcomes, it is important to carefully consider how this section can be used strategically. There are a number of strategies that can be employed to effectively navigate this provision. One strategy is to carefully examine the timeline of previous convictions. As outlined in the section, an earlier offence cannot be taken into account if 10 years have elapsed between the day of the earlier conviction and the day of the current offence. Lawyers may want to pay particular attention to the dates of previous convictions and how they may impact the severity of sentencing. In doing so, they may be able to argue for a lesser sentence or reduced charges. Another effective strategy is to take into account the specific nature of the previous convictions and how they fit within the scope of the provision. For example, section 84(5) lists specific offences that should be considered when determining whether a person has committed a subsequent offence. Lawyers may be able to argue that a previous conviction does not fall within the scope of the provision and, as a result, should not be used in the determination of sentencing. In addition, it may be strategic to explore whether there are any potential defenses to the charge within the provision. For example, section 84(5) allows for an earlier offence not to be taken into account if a firearm was used in the commission of the offence. A lawyer could argue that a firearm was not used in the commission of the previous offence and, as a result, should not be considered as an earlier offence. Furthermore, an effective strategy is to conduct a thorough investigation of the facts surrounding the current and any previous offences. By doing so, lawyers may be able to uncover additional evidence or information that can be used to argue for a lesser sentence or reduced charges. For instance, they could argue that a previous conviction was based on insufficient evidence or that there were mitigating circumstances surrounding the offence. Overall, understanding and strategically employing section 84(5) of the Criminal Code of Canada can be instrumental in achieving favorable sentencing outcomes. By carefully examining previous convictions, considering the specific nature of the offence, exploring potential defenses, and conducting a thorough investigation, lawyers can build strong arguments that can mitigate the impact of earlier convictions.