Criminal Code of Canada - section 730(4) - Where person bound by probation order convicted of offence

section 730(4)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows a court to revoke a discharge and impose a sentence if an offender under probation is convicted of an offence.

SECTION WORDING

730(4) Where an offender who is bound by the conditions of a probation order made at a time when the offender was directed to be discharged under this section is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, in addition to or in lieu of exercising its authority under subsection 732.2(5), at any time when it may take action under that subsection, revoke the discharge, convict the offender of the offence to which the discharge relates and impose any sentence that could have been imposed if the offender had been convicted at the time of discharge, and no appeal lies from a conviction under this subsection where an appeal was taken from the order directing that the offender be discharged.

EXPLANATION

Section 730(4) of the Criminal Code of Canada outlines the consequences for an offender who violates the conditions of their probation order. If the offender was previously given a discharge and is convicted of an offence, including one committed under section 733.1, the court that issued the probation order has the power to revoke the discharge and convict the offender of the offence related to the discharge. They may also impose any sentence that could have been given at the time of the original discharge. This means that the offender could be subject to a more severe penalty than they initially received. One important aspect of this provision is that it allows the court to take action at any time, not just when the offender is originally sentenced. This gives the court the power to intervene if the offender violates the terms of their probation at any point in the future. Additionally, if the court revokes the discharge and convicts the offender, they are not allowed to appeal the conviction if they already appealed the discharge. Overall, Section 730(4) is designed to ensure that offenders are held accountable for their actions and that they comply with the terms of their probation. It provides the court with the tools necessary to intervene if necessary to ensure that justice is served.

COMMENTARY

Section 730(4) of the Criminal Code of Canada deals with the conditions of a probation order, particularly the consequences that arise when those conditions are violated. The section provides the court with the power to revoke an offender's discharge and impose any sentence that could have been imposed at the time of discharge. The section begins by setting out an important condition of probation orders. It notes that offenders who are bound by the conditions of a probation order made at a time when they were directed to be discharged under Section 730 are subject to special rules. In other words, those who are discharged under this section of the Criminal Code are given an opportunity to avoid further punishment, but that opportunity comes with the responsibility of abiding by certain requirements. If an offender who is bound by those conditions is convicted of an offence (including an offence under Section 733.1), the court that made the probation order can take action under Section 732.2(5). That subsection allows the court to revoke the probation order and impose any sentence that could have been imposed at the time of the original conviction. In other words, the offender can be convicted of the same offence that led to the original discharge and face the same punishment as they would have if they had been convicted at that time. The section also notes that no appeal can be taken from a conviction under this subsection if an appeal was taken from the original order directing that the offender be discharged. This provision is important because it ensures that the court's decision is final and cannot be challenged in multiple ways by the offender. Overall, Section 730(4) serves an important purpose in ensuring that offenders who violate the terms of their probation orders face consequences for their actions. It allows the court to revoke an offender's discharge and impose a sentence that is proportional to the offence committed, even if that offence was committed after the original discharge. This ensures that offenders are not able to escape punishment simply by avoiding further violations of the law. Instead, they are held accountable for both their original offence and any subsequent breaches of their probation order.

STRATEGY

Section 730(4) of the Criminal Code of Canada is a provision governing the revocation of a discharge and imposition of a sentence in cases where an offender who is subject to a probation order is convicted of an offence. This section provides strategies for prosecutors and defense lawyers to use in the course of criminal proceedings. Here are some strategic considerations when dealing with this section of the law: 1. Timing of revocation: A prosecutor might consider revoking the discharge and seeking a sentence in a case where the offender fails to comply with the terms of the probation order. For instance, if the offender violates the order by failing to attend counseling sessions or engaging in criminal activity, the prosecutor may move to revoke the discharge before the end of the probation period. 2. Impose a sentence: Revoking a discharge could result in the offender being sentenced to a jail term. Defense lawyers should advise their clients that if the offender pleads guilty to the charges at trial (instead of denying the allegations), the court will likely consider a lesser sentence than the one they would receive if the charges went to trial and they were found guilty. 3. Mitigation strategies: Defense counsel could attempt to gain plea bargaining power for their clients in light of a potential discharge revocation. By exploring the possibility of mitigation strategies such as mental health issues, socio-economic instability, and personal circumstances, the defendant may be able to influence sentencing decisions and secure a reduced sentence or even probation. 4. Investigating appropriately: Prosecutors must be diligent in investigating the facts of each case before seeking the revocation of a discharge. Failure to adequately investigate may lead to refusals from the court, penalties, or loss of credibility with key players. 5. Assessing the likelihood of success: As with any legal proceeding, parties should assess the strength of their case before moving to court. Prosecutors must consider the probability of a successful conviction and anticipate the strength of defense arguments. In conclusion, Section 730(4) of the Criminal Code of Canada provides prosecutors and defense lawyers with an opportunity to use strategies that could help them achieve favorable outcomes. Both sides should carefully evaluate the risks and benefits of taking action under Section 730(4) and be prepared to effectively utilize this provision during the course of criminal proceedings.