INTRODUCTION AND BRIEF DESCRIPTION
The court must consider sections 109 or 110 before making a probation order.
SECTION WORDING
731.1(1) Before making a probation order, the court shall consider whether section 109 or 110 is applicable.
EXPLANATION
Section 731.1(1) of the Criminal Code of Canada is a provision that imposes an obligation on the courts to consider the applicability of section 109 or 110 before making a probation order. Sections 109 and 110 of the Criminal Code pertain to the imposition of mandatory conditions that may be included in a probation order. Section 109 pertains to probation orders made in relation to offences that involve violence. It requires the court to impose certain conditions, such as prohibiting the offender from possessing weapons or attending certain locations. Section 110 pertains to probation orders made in relation to sexual offences. It similarly requires the court to impose certain conditions, such as prohibiting the offender from contacting certain individuals or attending certain locations. The purpose of section 731.1(1) is to ensure that the appropriate conditions are attached to a probation order based on the nature of the offence. It is designed to protect public safety and prevent the risk of reoffending. Failure to consider the applicability of sections 109 or 110 may result in the imposition of inadequate conditions which may not prevent reoffending. The courts have a responsibility to ensure that probation orders are tailored to the individual offender and the specific offence committed. By considering sections 109 and 110, judges are taking into account the unique circumstances of the case and imposing appropriate conditions. This provision underscores the importance of giving careful consideration to all factors that are relevant to the tailoring of a probation order, and serves to prevent potential harm to the community.
COMMENTARY
Section 731.1(1) of the Criminal Code of Canada requires that before a court makes a probation order, it must consider whether section 109 or 110 is applicable. This section is important because it ensures that the court takes into account the nature of the offence and the potential risk posed by the offender before making a decision on probation. Section 109 of the Criminal Code relates to conditional sentences, which are sometimes referred to as house arrest. This section specifies the conditions that must be met for an offender to be eligible for a conditional sentence. For example, the offender must not be a danger to the public and must be unlikely to reoffend. The court must also consider factors such as the offender's criminal history, the nature and seriousness of the offence, and the impact the sentence would have on the victim and the community. Section 110 of the Criminal Code deals with probation orders. Probation is a form of community supervision that allows an offender to serve a sentence in the community rather than in prison. The court must consider factors such as the offender's risk of reoffending, the nature and seriousness of the offence, the impact the sentence would have on the victim and the community, and the availability of community resources to support the offender. The purpose of probation is to support the offender in addressing the underlying issues that led to their criminal behaviour. This can include issues such as substance abuse, mental health problems, or a lack of education or job skills. Probation officers work with offenders to develop a plan for rehabilitation and monitor their progress. The conditions of probation may include things such as regular drug testing, attendance at counselling or treatment programs, and community service. Section 731.1(1) ensures that the court carefully considers the potential risks and benefits of probation before making a decision. If the court determines that the offender is not suitable for probation, it may impose a different sentence, such as a term of imprisonment or a fine. This protects the public from offenders who may pose a risk of reoffending and ensures that the sentence is appropriate for the nature and seriousness of the offence. However, some critics argue that probation and conditional sentences are too lenient and do not hold offenders sufficiently accountable for their actions. They argue that these sentences do not adequately address the harm caused to victims and the community, and may even encourage offenders to reoffend. Overall, section 731.1(1) of the Criminal Code is an important provision that helps ensure that the court considers all relevant factors before making a decision on probation. It balances the need to hold offenders accountable for their actions with the goal of rehabilitation and reintegration into society. However, it is important to continue to evaluate the effectiveness of probation and conditional sentences in achieving these goals.
STRATEGY
Section 731.1(1) of the Criminal Code of Canada is an important provision that governs the making of probation orders in criminal cases. The section requires the court to consider whether sections 109 or 110 of the Code are applicable before making a probation order. This means that the court must take into account the offender's criminal record and the seriousness of the offence when deciding whether to grant probation. In this essay, I will discuss some strategic considerations when dealing with this section of the Criminal Code and suggest some strategies that could be employed. The first strategic consideration is to understand the purpose of probation. Probation is a form of community-based sentence that allows an offender to serve their sentence in the community instead of in jail. The goal of probation is to rehabilitate the offender, protect the community, and promote accountability. Therefore, when dealing with section 731.1(1), the offender's potential for rehabilitation, risk to the community, and willingness to be held accountable should be considered. The second strategic consideration is to know the applicability of section 109 or 110. Section 109 of the Criminal Code deals with offenders who have previously been convicted of a criminal offence and are being sentenced for a subsequent offence. Section 110 of the Code deals with offenders who have been convicted of a serious personal injury offence such as sexual assault, aggravated assault, or manslaughter. It is essential to know whether section 109 or 110 of the Code is applicable because it will have a significant impact on the type of sentence imposed. The third strategic consideration is to prepare a comprehensive pre-sentence report. A pre-sentence report contains information about the offender's background, including their criminal history, employment, education, mental health, and substance abuse. This report is valuable for the court when deciding whether to impose probation because it helps the court to understand the offender's potential for rehabilitation and risk to the community. The fourth strategic consideration is to negotiate with the prosecution. In some cases, the prosecution may be willing to accept a plea bargain that includes probation instead of jail time. It is crucial to discuss this option with the prosecutor and try to reach an agreement that is in the best interest of the offender. The fifth strategic consideration is to present a compelling case to the court. The offender's lawyer should be well-prepared and present a strong case to the court advocating for probation. The lawyer should emphasize the offender's potential for rehabilitation, their willingness to comply with the probation conditions, and the benefits of probation for the offender and the community. In conclusion, section 731.1(1) of the Criminal Code of Canada is an essential provision that governs the making of probation orders in criminal cases. When dealing with this section, it is essential to understand the purpose of probation, know the applicability of section 109 or 110, prepare a comprehensive pre-sentence report, negotiate with the prosecution, and present a compelling case to the court. These strategies will help the offender to achieve the best possible outcome when facing probation as a potential sentence.