INTRODUCTION AND BRIEF DESCRIPTION
Section 730(3) allows an offender who has been discharged of an offence to be deemed not convicted, with certain exceptions.
SECTION WORDING
730(3) Where a court directs under subsection (1) that an offender be discharged of an offence, the offender shall be deemed not to have been convicted of the offence except that (a) the offender may appeal from the determination of guilt as if it were a conviction in respect of the offence; (b) the Attorney General and, in the case of summary conviction proceedings, the informant or the informant’s agent may appeal from the decision of the court not to convict the offender of the offence as if that decision were a judgment or verdict of acquittal of the offence or a dismissal of the information against the offender; and (c) the offender may plead autrefois convict in respect of any subsequent charge relating to the offence.
EXPLANATION
Under section 730(3) of the Criminal Code of Canada, when a court directs that an offender be discharged of an offence, the offender will be deemed not to have been convicted of the offence. This means that a discharge does not result in a criminal conviction, which can benefit the accused in various ways. However, it is important to note that certain exceptions to this rule exist. For instance, under the provision, an offender who has been discharged may still appeal the determination of guilt as if it were a conviction in respect of the offence. Similarly, the Attorney General, as well as the informant or informant's agent in the case of summary conviction proceedings, may appeal from the decision of the court not to convict the offender of the offence as if it were a judgment or verdict of acquittal of the offence, or a dismissal of the information against the offender. Moreover, the accused who has been discharged may plead autrefois convict in respect of any subsequent charge relating to the offence. This means that if the accused is charged again for the same offence, they can argue that they have already been convicted, and therefore, cannot be tried again. Overall, section 730(3) seeks to ensure fairness in criminal proceedings by providing some relief to offenders who have been discharged of an offence while still allowing for appeals and protecting against double jeopardy.
COMMENTARY
Section 730(3) of the Criminal Code of Canada is a legal provision that enables Canadian courts to discharge an individual of a criminal offense, without technically issuing a conviction. The provision allows for the deemed non-conviction of the offender, but still permits the individual to appeal a determination of guilt as if it were a conviction. This provision also enables the Attorney General and informant to appeal the court's decision of not convicting the offender, as if it were a judgment or verdict of acquittal of the offense or a dismissal of the information against the offender. Finally, this section also allows the offender to plead autrefois convict in any subsequent charge against them for the same criminal offense. This section is important because it provides a second chance for individuals who have committed a crime, but have achieved rehabilitation or otherwise shown that they are unlikely to reoffend. It recognizes that not all individuals should be punished for the rest of their lives for an offense that they may have committed in their past. The discharge of an individual from a criminal offense also eliminates the associated stigma that comes with a criminal conviction, which can have a significant impact on an individual's future life prospects. However, it is important to note that the discharge of an individual from a criminal offense is not granted automatically. The court must investigate the offender's situation carefully, and determine that the offender is not likely to commit further offenses and that a discharge would be in the public interest. The offender must also acknowledge their guilt and be willing to take responsibility for their actions. Discharges are particularly common for first-time offenders or for offenders who have committed minor offenses. In more serious cases, the court may decide that a conviction and punishment are necessary to serve justice. Critics of Section 730(3) argue that it allows offenders to escape the consequences of their actions too easily, that it is too lenient, and that it could encourage individuals to commit crimes with little regard for the consequences. However, supporters argue that it recognizes the potential for rehabilitation and the need to give individuals a second chance. In fact, studies have shown that the discharge of minor offenses can have positive effects on rehabilitation, employment prospects, and reintegration into society. It is important to note that a discharge from a criminal offense does not mean that the individual is immune to future prosecution, nor does it absolve them of the moral responsibility of their crime. Overall, Section 730(3) of the Criminal Code of Canada provides an important tool for the Canadian courts to balance the goals of justice and rehabilitation. It recognizes that not all offenders are the same and that for some, punishment may not be the best path towards rehabilitation and reintegration into society. At the same time, it ensures that there are still consequences for an individual's actions and provides a mechanism for victims and the state to seek justice.
STRATEGY
Section 730(3) of the Criminal Code of Canada presents strategic considerations for both the defence and the Crown when dealing with a discharge. A discharge means that the person who committed the offence is no longer convicted, and as such there are legal implications and strategic considerations to be made. The first strategic consideration is whether or not to pursue a discharge. A discharge can be the best outcome for an offender as it allows them to avoid a criminal record. In some cases, a discharge may be the only option for a defendant to avoid the immigration consequences of a conviction. A discharge can also be useful for the Crown as it is less costly and time-consuming than a full prosecution. However, the Crown must weigh the potential risks of a discharge, including the perception that the offender has not been held accountable for their actions. If a discharge is pursued, the next strategic consideration is which type of discharge to seek. There are three types of discharges: absolute discharge, conditional discharge, and suspended sentence. An absolute discharge means that the person is no longer convicted and will not face any punishment. A conditional discharge means that the person is no longer convicted, but is required to abide by certain conditions, such as attending counseling or performing community service. A suspended sentence means that the person has been convicted, but the sentence has been suspended, and they are placed on probation. When deciding which type of discharge to pursue, the defence must consider the severity of the offence and the potential consequences of a conviction. For example, if the offender is facing a minor offence, an absolute discharge may be appropriate. However, if the offender is facing a more serious offence, a conditional discharge or suspended sentence may be more appropriate. Another strategic consideration is whether or not to seek a publication ban. A publication ban can prevent the offender's name and the details of the offence from being published in the media. This can be useful for the defence as it can protect the offender's reputation, but it can also be useful for the Crown as it can prevent similar offences from being committed in the future. Finally, both the defence and the Crown need to consider the potential future implications of a discharge. While a discharge may be an advantageous outcome in the short-term, it could potentially have negative consequences in the future, such as affecting employment or travel opportunities. Thus, it is critical to weigh the benefits and drawbacks of a discharge before pursuing it. In conclusion, Section 730(3) of the Criminal Code of Canada presents both legal and strategic considerations for both the defence and the Crown. The outcome of a discharge can have far-reaching implications for both parties, and as such, careful consideration should be given to the most appropriate course of action. Strategic considerations such as the type of discharge pursued, the potential consequences of a conviction, the use of a publication ban, and the future implications of a discharge should all be carefully weighed before proceeding with a discharge.