INTRODUCTION AND BRIEF DESCRIPTION
This section allows a court to revoke or modify a probation order if an offender is convicted of another offence while under probation.
SECTION WORDING
732.2(5) Where an offender who is bound by a probation order is convicted of an offence, including an offence under section 733.1, and (a) the time within which an appeal may be taken against that conviction has expired and the offender has not taken an appeal, (b) the offender has taken an appeal against that conviction and the appeal has been dismissed, or (c) the offender has given written notice to the court that convicted the offender that the offender elects not to appeal the conviction or has abandoned the appeal, as the case may be, in addition to any punishment that may be imposed for that offence, the court that made the probation order may, on application by the prosecutor, require the offender to appear before it and, after hearing the prosecutor and the offender, (d) where the probation order was made under paragraph 731(1)(a), revoke the order and impose any sentence that could have been imposed if the passing of sentence had not been suspended, or (e) make such changes to the optional conditions as the court deems desirable, or extend the period for which the order is to remain in force for such period, not exceeding one year, as the court deems desirable, and the court shall thereupon endorse the probation order accordingly and, if it changes the optional conditions or extends the period for which the order is to remain in force, inform the offender of its action and give the offender a copy of the order so endorsed.
EXPLANATION
Section 732.2(5) of the Criminal Code of Canada deals with the consequences that an offender may face if they are convicted of an offence while being bound by a probation order. When an offender is convicted of an offence, including an offence under section 733.1, the court that made the probation order may, on application by the prosecutor, require the offender to appear before it. This is only applicable in situations where the offender has exhausted all means of appeal or has chosen not to appeal or abandoned the appeal. The court has the authority to revoke the probation order and impose any sentence that could have been imposed if the passing of sentence had not been suspended. The court may also make changes to the optional conditions of the probation order or extend its period for up to one year. The court then endorses the probation order accordingly and informs the offender of its actions while providing them with a copy of the order. The purpose of this section is to ensure that offenders who are on probation are held accountable for their actions and do not violate the conditions of their probation order. This is done by allowing the court to apply stricter penalties and conditions to the offender's probation order in cases where the offender is found guilty of another offence. It ensures that offenders are aware of the consequences of violating their probation orders and that they are not given a free pass to commit crimes while on probation. This section is vital because it helps to maintain public safety by ensuring that offenders who are on probation follow the conditions of their orders and do not commit offences.
COMMENTARY
Section 732.2(5) of the Criminal Code of Canada establishes the consequences for offenders who violate their probation by committing another offence. When an offender who is bound by a probation order is convicted of an offence, the court that made the probation order may require the offender to appear before it and, after hearing the prosecutor and the offender, revoke the order and impose any sentence that could have been imposed if the passing of sentence had not been suspended, or make changes to the optional conditions of the probation order. This provision of the Criminal Code serves to ensure that offenders are held accountable for their actions and are discouraged from committing further offences. By imposing stricter penalties for violating probation, this section of the Criminal Code aims to deter offenders from engaging in criminal activity while they are under community supervision. The provision also serves to protect the public by ensuring that offenders who violate their probation are subjected to more severe sentencing. The ability to revoke the probation order and impose any sentence that could have been imposed if the passing of sentence had not been suspended ensures that offenders who commit further offences are not given a "free pass" and must face the full consequences of their actions. Additionally, this section of the Criminal Code allows for changes to be made to the optional conditions of the probation order. This can be particularly important in cases where the offender has demonstrated a lack of compliance with the existing conditions of their probation. By altering the conditions of the probation order, the court can enforce stricter supervision and support the offender in making positive changes to their behaviour. Overall, Section 732.2(5) of the Criminal Code of Canada plays an essential role in the criminal justice system by ensuring that offenders who violate their probation are held accountable for their actions. By providing the courts with the authority to impose stricter penalties, this section of the code sends a clear message that probation is a serious matter and should be taken seriously by those who are under its supervision.
STRATEGY
Probation can be an effective tool in rehabilitating offenders and preventing further criminal activity. However, when an offender violates their probation by committing another offence, the court must consider whether to revoke the probation order and impose a more serious sentence. Section 732.2(5) of the Criminal Code of Canada provides the court with the power to do so. In this essay, we 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 to consider is whether to apply for revocation of the probation order or to seek changes to the optional conditions or an extension of the period for which the order is to remain in force. This decision will depend on the nature of the new offence, the offender's compliance with the probation order, and their overall likelihood to reoffend. If the new offence is minor or unrelated to the original offence, and the offender has otherwise complied with the probation order, it may be more appropriate to seek changes or an extension of the order. On the other hand, if the new offence is serious or indicates a high likelihood of reoffending, revocation of the probation order may be necessary. Another strategic consideration is the timing of the application. Section 732.2(5) requires that the time within which an appeal may be taken against the conviction has expired, or the offender has given written notice to the court that they elect not to appeal or have abandoned the appeal. Therefore, it is important to monitor the status of any appeals and to make the application for revocation or changes to the probation order promptly after the expiry of the appeal period. A third strategic consideration is the presentation of evidence to support the application. The prosecutor must present evidence to convince the court that revocation or changes to the probation order are necessary. This evidence may include the offender's criminal history, their compliance with the probation order, and the nature of the new offence. The prosecutor must also show that revocation or changes to the probation order are necessary for the protection of society and to address the offender's pattern of criminal behaviour. Finally, the offender's response to the application is another strategic consideration. The offender has the right to respond to the application and may present evidence or arguments to convince the court to maintain the probation order or impose less severe sanctions. The offender's response may impact the court's decision, particularly if they are able to demonstrate that they have taken steps towards rehabilitation or have extenuating circumstances that explain their breach of the probation order. Given these strategic considerations, some strategies that could be employed when dealing with section 732.2(5) include: 1. Conduct regular monitoring of the offender's compliance with the probation order to identify breaches promptly. 2. Seek early resolution of any new offences to ensure that the probation order remains in force for as long as possible. 3. Collect and present evidence that demonstrates the offender's compliance with the probation order, any efforts towards rehabilitation, and the nature of the new offence. 4. Seek collaboration between criminal justice agencies, community organizations, and other stakeholders to provide the offender with comprehensive support and supervision. In conclusion, section 732.2(5) of the Criminal Code of Canada provides courts with a powerful tool to respond to probation violations. The decision to seek revocation or changes to the probation order requires careful strategic considerations and evidence-based analysis. By employing effective strategies, prosecutors can help ensure that probation is an effective tool for rehabilitating offenders and preventing further criminal activity.