INTRODUCTION AND BRIEF DESCRIPTION
This section of the Criminal Code of Canada specifies how previous convictions are to be considered for the purpose of determining whether a convicted person has committed a second or subsequent offence.
SECTION WORDING
279(1.2) In determining, for the purpose of paragraph (1.1)(a), 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 subsection (1); (b) an offence under subsection 85(1) or (2) or section 244 or 244.2; or (c) an offence under section 220, 236, 239, 272, 273, 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 279(1.2) of the Criminal Code of Canada addresses the issue of determining the severity of a sentence for a convicted person who has committed a second or subsequent offence. The section specifies that if the individual has previously been convicted for certain offenses, those offenses will be considered as an earlier offense for sentencing purposes. The offenses listed are: (a) an offense under subsection (1) (which refers to kidnapping and forcible confinement offenses), (b) an offense under subsection 85(1) or (2) or Section 244 or 244.2 (which relate to firearms and dangerous weapons offenses), or (c) an offense under sections 220, 236, 239, 272, 273, 279.1, 344, or 346 if a firearm was used in the commission of the offense. However, in determining whether an offense counts as a second or subsequent offense, the section takes into account the time elapsed between the prior offense and the current offense. If more than 10 years have elapsed between the two offenses, the earlier offense will not be taken into account for purposes of sentencing. This provision recognizes that previous offenses may have been committed a long time ago and may not be relevant to the severity of the current offense. By establishing these guidelines, Section 279(1.2) helps ensure that defendants receive fair and just sentencing that conforms to the overall principles and objectives of the Criminal Code.
COMMENTARY
Section 279(1.2) of the Criminal Code of Canada is an important provision that deals with determining whether a convicted person has committed a second or subsequent offence. The provision sets out the offences that are considered as an earlier offence for the purpose of determining whether a person's current offence is a second or subsequent offence. Paragraph (1.1)(a) of the provision provides that a person who is convicted of an offence under section 279(1) of the Criminal Code of Canada is guilty of an indictable offence and is liable to imprisonment for a term not exceeding 10 years. Under paragraph (1.2)(a) of the provision, if a person was earlier convicted of an offence under subsection (1) of section 279 of the Criminal Code of Canada, that offence is to be considered as an earlier offence for the purpose of determining whether the person's current offence is a second or subsequent offence. Paragraph (1.2)(b) of the provision provides that if a person was earlier convicted of an offence under subsection 85(1) or (2) or section 244 or 244.2 of the Criminal Code of Canada, that offence is to be considered as an earlier offence for the purpose of determining whether the person's current offence is a second or subsequent offence. Paragraph (1.2)(c) of the provision states that if a person was earlier convicted of an offence under section 220, 236, 239, 272, 273, 279.1, 344 or 346 of the Criminal Code of Canada and a firearm was used in the commission of the offence, that offence is to be considered as an earlier offence for the purpose of determining whether the person's current offence is a second or subsequent offence. However, the provision also sets out a limitation period of 10 years under which an earlier offence shall not be taken into account. This means that an earlier offence will not be considered 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. The purpose of this provision is to ensure that repeat offenders are adequately punished for their crimes. By considering a person's prior convictions when determining their sentence, the court can accurately assess the risk they pose to society and impose appropriate penalties that reflect the gravity of their offences. Additionally, by including a limitation period of 10 years, the provision recognizes that society's interest in seeing justice done must be balanced with the importance of rehabilitation and the need to give individuals a chance to turn their lives around. In conclusion, Section 279(1.2) of the Criminal Code of Canada is an important provision that takes into account a person's prior convictions when determining their sentence. By doing so, it helps ensure that repeat offenders are held accountable for their crimes and that appropriate penalties are imposed that reflect the severity of their conduct. At the same time, it recognizes the importance of rehabilitation and gives individuals a chance to spend time positively reforming their character before being held to account for past transgressions.
STRATEGY
Section 279(1.2) of the Criminal Code of Canada provides guidelines for determining the sentence of a person who has been convicted of a subsequent offense. This section establishes the criteria for considering previous convictions and sets limits on how old a prior conviction can be to be considered an earlier offense. Defense lawyers and prosecutors need to be aware of the provisions of this section when representing their clients in criminal cases. Some strategic considerations when dealing with this section of the Criminal Code of Canada include: 1. Investigating prior offenses: Defense lawyers and prosecutors need to carefully investigate previous offenses to determine whether they fall under the categories outlined in section 279(1.2). It is essential to gather as much evidence as possible to establish whether a previous conviction is considered an earlier offense under the law. 2. Timing of prior offenses: Lawyers need to calculate the time elapsed between the earlier conviction and the current offense to determine whether it can be considered under section 279(1.2). A previous offense will only be considered an earlier offense if the time between the two convictions is less than ten years. 3. Negotiating plea bargains: Prosecutors can leverage the provisions of section 279(1.2) to negotiate plea bargains with defendants. For example, a defendant who is facing a subsequent offense charge may be willing to plead guilty to reduce the sentence if his or her prior conviction is not admissible under this section. 4. Seeking a reduction in sentence: Defendants who have prior convictions that fall under section 279(1.2) may seek a reduction in sentence. If the prior conviction is not admissible under this section, it cannot be used to enhance the sentence. 5. Presenting mitigating factors: Defense lawyers can present mitigating factors to convince the judge to consider a prior conviction as a single occurrence rather than a subsequent offense. These factors can include the time elapsed between the two convictions, the severity of the prior offense, and the defendant's efforts towards rehabilitation. Overall, section 279(1.2) of the Criminal Code of Canada has significant implications for criminal cases involving subsequent offenses. Lawyers need to be well-versed in the provisions of this section and strategize accordingly to ensure the best possible outcome for their clients.