INTRODUCTION AND BRIEF DESCRIPTION
If a defendant is found guilty on two or more counts, the sentence is valid if any one of the counts justifies the sentence.
SECTION WORDING
728 Where one sentence is passed on a verdict of guilty on two or more counts of an indictment, the sentence is good if any of the counts would have justified the sentence.
EXPLANATION
Section 728 of the Criminal Code of Canada deals with situations where a defendant is found guilty on multiple counts of an indictment. In such cases, the section provides that if any of the counts would have justified the sentence, then the sentence passed on the defendant is considered valid and legal. Essentially, this means that if any of the counts on which a defendant was found guilty are serious enough to warrant a certain penalty, then the sentence imposed on the defendant is deemed lawful, even if the other counts may not have been enough to justify that particular penalty. For instance, imagine that a defendant is charged with both robbery and assault. If the defendant is found guilty of both charges and sentenced to imprisonment for five years, but the sentencing judge later discovers that the evidence for the robbery charge was not sufficient for such a harsh sentence, the sentence is still valid provided that the assault charge would have justified the five-year imprisonment. This provision in the Criminal Code of Canada helps to ensure fairness in sentencing, by allowing courts to impose penalties that reflect the seriousness of a defendant's actions, even in cases where there may be some doubt regarding the evidence. Ultimately, this provision seeks to uphold the principle of justice, by ensuring that sentences are proportional to the crimes committed.
COMMENTARY
Section 728 of the Criminal Code of Canada provides that where one sentence is passed on a verdict of guilty on two or more counts of an indictment, the sentence is good if any of the counts would have justified the sentence. This essentially means that if a person is found guilty of multiple offences, a sentence given for any one of those offences would be considered adequate as long as the other offences could also justify that sentence. This section aims to simplify the sentencing process in cases where multiple offences have been committed. Instead of a court trying to determine the appropriate sentence for each individual offence, the court can look at the combined offences and determine whether a single sentence is appropriate. However, the wording of this section has been subject to some criticism. One concern is that it may allow for disproportionate sentencing, as a single offence could lead to a sentence that would be considered excessive if applied to each offence individually. In addition, the section may not fully account for the individual circumstances of each offence and the offender, leading to potential injustice. Another criticism is that this section may lead to a form of sentencing stacking", where prosecutors charge a defendant with multiple counts of an offence in the hopes of obtaining a more severe sentence. For example, a defendant charged with multiple counts of a drug offence could potentially receive a longer sentence than if they were charged with a single count, even if the total amount of drugs seized remains the same. Overall, while Section 728 aims to simplify the sentencing process for multiple offences, it may also lead to potential problems and injustice. Therefore, it is important that judges exercise discretion in applying this provision and take into account the individual circumstances of each offence and offender. Additionally, prosecutors must exercise caution and ensure that each charge brought against a defendant is necessary and justifiable, rather than using multiple charges as a way to increase potential sentencing outcomes.
STRATEGY
Section 728 of the Criminal Code of Canada is a provision that criminal defense lawyers and their clients can take advantage of to potentially reduce the severity of a sentence. The provision stipulates that if a guilty verdict is returned on two or more counts of an indictment, and any of these counts would justify the sentence passed, then the sentence will be upheld. This means that it is crucial for lawyers to carefully consider charges and the evidence supporting them in order to weigh the potential benefits of leveraging this provision when it comes to their clients. One important strategic consideration is the possibility of having multiple charges with differing levels of severity. For instance, if a person is charged with multiple offences, some of which are considered more severe than others, the defense lawyer may choose to rely on Section 728 as a way to mitigate the most severe consequences. In this situation, the lawyer can argue that although the defendant is guilty on all counts, only some of those counts would justify the most severe sentence, and therefore, the sentence should be reduced for that reason alone. Another strategic consideration is the potential value of a plea bargain. When a defendant pleads guilty to multiple counts, it is possible to negotiate a plea bargain to reduce the number of charges and the potential sentence in exchange for the defendant's guilty plea. In some cases, a plea bargain can involve a guilty plea to one charge only, which means that Section 728 may be used to reduce the sentence. In other cases, the plea bargain may involve a guilty plea to some charges, but not others. In such instances, where the defendant believes they might be found guilty on all charges, using Section 728 could still be an effective way to reduce the sentence. Furthermore, a defense lawyer may consider challenging the evidence presented in court on only one of the two or more counts where a guilty verdict has been returned. By doing so, the lawyer aims to have the guilty verdict set aside on that count and potentially reduce the sentence imposed under Section 728. However, such a strategy requires careful consideration of the evidence, the strength of the case, and the ability of the lawyer to demonstrate flaws or inconsistencies in the prosecution's case. In conclusion, Section 728 offers a strategic avenue for criminal defense lawyers to negotiate and potentially reduce a sentence when multiple counts are involved. This section of the Criminal Code of Canada also underscores the importance of carefully assessing and negotiating charges and evidence during the pre-trial and trial phases, as well as utilizing possible plea bargains. Ultimately, the appropriate strategy depends on the specific circumstances of each case, and a qualified criminal defense lawyer should be involved in making such determinations.