Criminal Code of Canada - section 742.5(1)

section 742.5(1)

INTRODUCTION AND BRIEF DESCRIPTION

This section allows for the transfer of a conditional sentence order to a court in a different territorial division under certain conditions.

SECTION WORDING

742.5(1) Where an offender who is bound by a conditional sentence order becomes a resident of a territorial division, other than the territorial division where the order was made, on the application of a supervisor, the court that made the order may, subject to subsection (1.1), transfer the order to a court in that other territorial division that would, having regard to the mode of trial of the offender, have had jurisdiction to make the order in that other territorial division if the offender had been tried and convicted there of the offence in respect of which the order was made, and the order may thereafter be dealt with and enforced by the court to which it is so transferred in all respects as if that court had made the order.

EXPLANATION

Section 742.5(1) is a provision in the Criminal Code of Canada that deals with the transfer of conditional sentence orders. A conditional sentence order is a sentence that allows an offender to serve their sentence in the community under specific conditions and supervision, rather than in jail or prison. This provision is designed to address the situation where an offender who is subject to a conditional sentence order moves to a different territorial division (e.g. province or territory) than the one where the order was made. In such cases, a supervisor (who is responsible for monitoring the offender's compliance with the conditions of their sentence) can apply to the court that made the order for it to be transferred to a court in the offender's new territorial division. The court that made the order has the discretion to transfer it if certain conditions are met. First, the court in the new territorial division must have jurisdiction to make the order if the offender had been tried and convicted of the offence in that division. Second, the mode of trial in the new territorial division must be considered, meaning that the type of court (e.g. provincial or superior) and the method of trial (e.g. judge alone or jury trial) must be taken into account. If the court decides to transfer the order, it will be treated as if it had been made by the new court. This means that the new court will have the authority to enforce the order and deal with any breaches or non-compliance with the conditions. Overall, this provision ensures that conditional sentence orders can be effectively enforced even when an offender moves to a different territorial division, by allowing for the transfer of the order to a court that has jurisdiction and can monitor the offender in accordance with the conditions of their sentence.

COMMENTARY

Section 742.5(1) of the Criminal Code of Canada relates to the transfer of a conditional sentence order (CSO) in cases where the offender moves to a different territorial division. This section empowers the court that originally issued the CSO to transfer it to a court in the new territorial division where the offender has become a resident, subject to certain conditions. The purpose of this section is to facilitate the enforcement of conditional sentences by ensuring that they are not disrupted by the offender's relocation to a different territorial division. A CSO is a form of punishment that allows an offender to serve their sentence in the community while under supervision. It is intended to be an alternative to imprisonment for less serious offences, and is only issued if the court is satisfied that the offender does not pose a risk to society and can be safely monitored in the community. However, the effectiveness of a CSO is dependent on the offender's compliance with the conditions of the order, including reporting to their supervisor as required and abiding by any restrictions on their behaviour. If an offender moves to a different territorial division, it can be difficult for their supervisor to monitor their compliance, especially if the offender relocates without notifying their supervisor. The transfer of a CSO under section 742.5(1) addresses this problem by allowing the court to maintain oversight of the offender's compliance with the CSO, even if the offender has moved to a different territorial division. The court can transfer the order to a court in the new territorial division, which would have had jurisdiction to issue the order if the offender had been tried and convicted there. This allows the court in the new territorial division to enforce the CSO and take appropriate action if the offender fails to comply with its conditions. It is important to note that the transfer of a CSO under section 742.5(1) is subject to certain conditions. The court can only transfer the order if the offender consents to the transfer and if the court in the new territorial division agrees to accept the transfer. Additionally, the court must consider the mode of trial of the offender and whether the court in the new territorial division would have had jurisdiction if the offender had been tried and convicted there. Overall, section 742.5(1) of the Criminal Code of Canada serves an important role in ensuring that conditional sentences are not undermined by an offender's relocation to a different territorial division. By allowing the court to transfer the order to a new jurisdiction, the offender can continue to be held accountable for their actions and receive the appropriate punishment for their offence. This ultimately serves the interests of justice and helps to maintain public confidence in the criminal justice system.

STRATEGY

Section 742.5(1) of the Criminal Code of Canada provides a mechanism for the transfer of a conditional sentence order to a court in a different territorial division. This section of the Code is relevant in cases where an offender who is subject to a conditional sentence order transits or moves to a different location. In such cases, the court that issued the order can facilitate the transfer of the order to a court in the new territorial division. There are strategic considerations that need to be taken into account when dealing with this section of the Criminal Code of Canada. The following are some of the strategic considerations that need to be considered: 1. Effectiveness of the conditional sentence order The primary consideration when dealing with a transfer of a conditional sentence order is the effectiveness of the order. This means that the court needs to be satisfied that the transfer of the order will not diminish the effectiveness of the order. To this end, the court should consider the nature of the order, the offender's compliance with the order, and the availability of resources in the new territorial division to enforce the order. 2. Jurisdictional issues Another strategic consideration when dealing with a transfer of a conditional sentence order is jurisdictional issues. The court needs to ensure that it has the jurisdiction to transfer the order to the new territorial division. It also needs to ensure that the court in the new territorial division has the jurisdiction to enforce the order. The court should therefore review the relevant provisions of the Criminal Code of Canada and any applicable case law to determine the jurisdictional issues that may arise. 3. Availability of resources in the new territorial division A key strategic consideration when transferring a conditional sentence order to a new territorial division is the availability of resources in the new territory. The court needs to review whether the new territorial division has the necessary resources to enforce the order. This includes the availability of probation officers, treatment facilities, and other resources that may be required to monitor and enforce the order. 4. Communication and coordination with the new territorial division Another strategic consideration when transferring a conditional sentence order is the need for communication and coordination with the new territorial division. The court needs to ensure that the new territorial division is aware of the transfer of the order and has access to all the necessary information related to the order. It is also important for the court to communicate with the new territorial division to ensure a smooth transfer of the order. 5. Ensuring compliance with the order Finally, a key strategic consideration when transferring a conditional sentence order is ensuring compliance with the order. The court needs to ensure that the offender complies with the order in the new territorial division. This may require the court to impose additional conditions or modify the existing conditions of the order to ensure that the offender complies with the order. In conclusion, Section 742.5(1) of the Criminal Code of Canada provides a mechanism for transferring a conditional sentence order to a court in a new territorial division. However, there are several strategic considerations that need to be taken into account when dealing with a transfer of a conditional sentence order. The effectiveness of the order, jurisdictional issues, availability of resources in the new territorial division, communication and coordination with the new territorial division, and ensuring compliance with the order are all important strategic considerations that need to be carefully considered. By taking these strategic considerations into account, the court can facilitate a smooth transfer of the order and ensure that the order continues to be effective in the new territorial division.