INTRODUCTION AND BRIEF DESCRIPTION

Section 730(1) allows for a discharge or probation order instead of a conviction for certain offenses if it is in the best interests of the accused and not contrary to the public interest.

SECTION WORDING

730(1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

EXPLANATION

Section 730(1) of the Canadian Criminal Code outlines a provision that gives courts the discretion to discharge an accused individual absolutely or subject to probation conditions, instead of imposing a conviction, if certain conditions are met. Specifically, this provision applies only to situations where the accused individual has either pleaded guilty to or been found guilty of an offense, with the exception of offenses that carry a minimum punishment or a sentence of imprisonment for fourteen years or life. The court may exercise this discretion if it believes it would be in the best interests of the accused individual and not contrary to the public interest. This means that factors such as the seriousness of the offense, the individual's past criminal record, and their personal circumstances may be considered when making this determination. If the court decides to discharge the accused individual, they will not have a criminal record for that offense. However, if they are subject to probation conditions, they must comply with those conditions for a set period of time. Failure to comply with these conditions could result in the accused individual facing additional criminal charges. Overall, Section 730(1) provides a way for courts to exercise discretion and take into account an individual's circumstances when determining the appropriate course of action for a guilty verdict in certain circumstances. This can often lead to more favorable outcomes for the accused individual, particularly if they have extenuating circumstances that might warrant leniency.

COMMENTARY

Section 730(1) of the Criminal Code of Canada provides the court with discretion to discharge an accused person on the conditions prescribed in a probation order, instead of convicting them for certain offences that do not carry a minimum punishment prescribed by law or punishable by imprisonment for fourteen years or for life. This section is aimed at providing the court with the flexibility to deal with cases involving less serious offences, primarily focused on rehabilitating the offender and reintegrating them back into society. The section enables the court to consider the best interests of the accused while weighing the public interest. This is an important balancing act, as the court must ensure that the discharge would not undermine public confidence in the administration of justice. The primary consideration is to ensure that the public is adequately protected from the criminal activity of the offender. The section serves as an alternative to a full conviction, which can result in a criminal record for the offender, impacting their ability to secure employment or pursue other opportunities. Discharging an accused on the conditions prescribed in a probation order can provide the accused with an opportunity to learn from their mistakes, take responsibility for their actions and address the underlying issues that led to the offence. The conditions of the probation order can vary depending on the circumstances of the case and the individual needs of the offender. Such conditions may include mandatory counselling, drug or alcohol testing, community service or curfew requirements. The goal is to ensure that the offender receives guidance and support to prevent recidivism, and to hold them accountable for their actions. However, the use of section 730(1) has been a topic of debate among legal experts. Some argue that the section is too lenient, as it allows offenders to avoid the full consequences of their actions. Others argue that it is not lenient enough, as it only applies to certain offences and leaves potential for unequal application of the law. Ultimately, the decision to discharge an accused on the prescribed conditions remains at the discretion of the court. The court must weigh the best interests of the accused against the interests of the public, considering the individual circumstances of the case. In doing so, they can ensure that the defendant is held accountable for their actions while providing them with an opportunity to rehabilitate and contribute to society in a positive way.

STRATEGY

Section 730(1) of the Criminal Code of Canada can be a powerful tool for defence counsel and prosecutors alike. As such, there are several strategic considerations that should be taken into account when dealing with this section. One of the most important strategic considerations is whether the accused should plead guilty or proceed to trial. If the accused is found guilty, section 730(1) provides the court with the discretion to discharge the accused absolutely or impose conditions on a probation order rather than imposing a criminal conviction. This can be advantageous for the accused, as it may allow them to avoid the negative consequences of a criminal conviction, such as difficulty finding employment or housing. However, it may also be disadvantageous if the conditions of probation are onerous or if the accused is required to undergo treatment or counseling. Another strategic consideration is whether the accused should oppose or agree to the imposition of a probation order. If the accused disagrees with the conditions imposed on the probation order, they may have the opportunity to appeal the order or seek a variation of the conditions. On the other hand, if the accused agrees to the probation order, they may be able to use this as an opportunity to demonstrate their willingness to take responsibility for their actions and make positive changes in their life. The terms of the probation order should also be considered in light of the accused's personal circumstances. For example, if the accused is employed or attending school, the conditions of the probation order should not be so onerous as to interfere with their ability to maintain employment or attend school. Similarly, if the accused has a history of mental health issues, the probation order should take this into account by providing them with access to appropriate treatment or counseling. Finally, the prosecutor should consider whether it is in the public interest to seek a criminal conviction or whether it would be more appropriate to seek a discharge or probation order. Factors that may be relevant in this regard include the seriousness of the offence, the accused's criminal record, and whether the accused has expressed remorse or taken steps to rehabilitate themselves. In terms of strategies that can be employed, defence counsel may wish to negotiate with the prosecutor to seek the imposition of a probation order rather than a criminal conviction. This may involve making concessions, such as agreeing to the imposition of certain conditions on the probation order. Defence counsel may also wish to present evidence at sentencing that supports the imposition of a probation order rather than a criminal conviction, such as evidence of the accused's positive contributions to society or their efforts to take responsibility for their actions. Prosecutors, on the other hand, may wish to seek the imposition of a probation order rather than a criminal conviction in cases where the accused has no prior criminal record or where the offence is relatively minor. This may involve making concessions, such as agreeing to the imposition of less onerous conditions on the probation order. Prosecutors may also wish to seek input from the victim of the offence or consult with community agencies to determine what conditions would be most appropriate in the circumstances. In conclusion, section 730(1) of the Criminal Code of Canada provides the court with the discretion to discharge an accused absolutely or impose conditions on a probation order rather than imposing a criminal conviction. Strategic considerations when dealing with this section include whether the accused should plead guilty, whether to agree or oppose the imposition of a probation order, the terms of the probation order, and whether it is in the public interest to seek a criminal conviction or a discharge/probation order. Strategies that can be employed include negotiating with the prosecutor, presenting evidence at sentencing, and seeking input from victims or community agencies.