INTRODUCTION AND BRIEF DESCRIPTION
If someone is sentenced to less than two years in prison while still serving a sentence in a penitentiary, they will serve that term in a penitentiary, unless their previous sentence is set aside.
SECTION WORDING
743.1(2) Where a person who is sentenced to imprisonment in a penitentiary is, before the expiration of that sentence, sentenced to imprisonment for a term of less than two years, the person shall serve that term in a penitentiary, but if the previous sentence of imprisonment in a penitentiary is set aside, that person shall serve that term in accordance with subsection (3).
EXPLANATION
Section 743.1(2) of the Criminal Code of Canada relates to the serving of prison sentences for offenders who have previously been sentenced to imprisonment in a penitentiary. Specifically, the section states that if a person is sentenced to imprisonment in a penitentiary and is subsequently sentenced to a term of imprisonment of less than two years before their initial sentence expires, they must serve their new sentence in a penitentiary as well. This provision is meant to ensure that offenders who have committed serious crimes and received significant prison sentences are held to a higher standard than those who have committed less severe offenses. By requiring such offenders to serve subsequent sentences in a penitentiary, the section reinforces the gravity of their past actions and underscores the importance of deterrence. However, the section also provides for some flexibility in cases where a previous sentence has been set aside. In such cases, the offender may serve their new sentence in accordance with subsection (3) of the section, which provides for the possibility of serving the sentence in a different facility or under different conditions. Overall, section 743.1(2) serves as an important element of the Criminal Code's sentencing regime, ensuring that offenders are held accountable for their past actions and that they continue to be treated in a manner consistent with the severity of their crimes.
COMMENTARY
Section 743.1(2) of the Criminal Code of Canada deals with the issue of sentencing for individuals who are serving time in a penitentiary and are convicted of another crime before their original sentence expires. This law states that any person sentenced to imprisonment in a penitentiary who is also convicted of a new crime before their original sentence has expired shall serve any new sentence of less than two years in a penitentiary as well. This law is based on the principle of proportionality in sentencing, which holds that the punishment should fit the crime. The idea is that if someone has been sentenced to a penitentiary for a serious crime, they should be deemed more dangerous to society than someone who has not received such a sentence. Therefore, if the individual is convicted of another crime while still serving that sentence, it is assumed that the new crime is equally or more serious, and they should continue to serve their sentence in a penitentiary. Additionally, this provision states that if the previous sentence of imprisonment in a penitentiary is set aside, then the person shall serve their new sentence in accordance with subsection (3). Subsection (3) of this law states that "subject to subsection (5), the term of imprisonment imposed shall be served in a penitentiary if the court is satisfied that the service of the sentence in a penitentiary is necessary for the protection of the public, to assist in the rehabilitation of the offender, or for any other reason consistent with the fundamental purpose and principles of sentencing." This provision recognizes that not all individuals who are convicted of a crime while serving time in a penitentiary may necessarily pose a risk to society. Therefore, it allows for the possibility of serving the sentence outside of a penitentiary, as long as the court is satisfied that it is necessary for the protection of the public or rehabilitation of the offender. However, it also must be noted that there has been criticism of this provision, particularly in regard to its effect on Indigenous peoples. Research has shown that Indigenous people are overrepresented in the Canadian criminal justice system, and are disproportionately impacted by mandatory minimum sentences and harsher sentencing. This provision has the potential to further exacerbate these trends, as Indigenous people are more likely to be sentenced to a penitentiary and less likely to receive lighter sentences such as probation or conditional sentences. Therefore, it is important to consider ways to address these inequalities in the criminal justice system. In conclusion, section 743.1(2) is a provision in the Criminal Code of Canada that deals with the sentencing of individuals convicted of a crime while serving time in a penitentiary. While it attempts to ensure proportionality in sentencing, it is important to also consider the possible impact on marginalized groups. As society continues to evolve, so too does our understanding of and approach to criminal justice reform. Therefore, we must be open to reevaluating and potentially amending these provisions to create a fair and just system for all individuals.
STRATEGY
Section 743.1(2) of the Criminal Code of Canada is an essential consideration for practitioners dealing with sentencing options available for their clients who are being charged with criminal offences. This section sets out specific rules governing the incarceration of persons convicted of criminal offences, particularly where they have received a previous sentence of imprisonment in a penitentiary. One strategic consideration when dealing with this section of the Criminal Code of Canada is the nature of the offence committed by the accused. In cases where the offence is minor, and the accused has no previous convictions, it might be possible to negotiate a plea agreement or a sentence reduction to avoid the application of this section. For instance, if an accused has been sentenced to imprisonment for six months but received a suspended sentence for a first-time DUI offence, there may be scope to urge a provincial court judge to impose a sentence of less than two years. Another strategic consideration is the timing of the sentencing. Where an accused has been convicted of an offence that carries a sentence of less than two years, the defence counsel may consider delaying the sentencing to allow the accused to complete any previous penitentiary sentences. By doing this, the accused will not have to serve an additional sentence in a penitentiary, as they have already completed one. Similarly, where an accused is about to complete their sentence in a penitentiary, defence counsel may want to consider delaying the sentencing to ensure that the accused is not required to return to the penitentiary for purposes of serving an additional sentence. To take advantage of this as a strategy, defence counsel may need to be proactive in advocating for timely court appearances and sentencing to avoid further incarceration. Defence counsel may also seek to have the previous penitentiary sentence set aside in the appropriate circumstances. This may occur where there is a legal challenge to the previous sentence or a successful appeal resulting in overturning the previous sentence. By setting aside the previous sentence, the accused will not be subject to the mandatory requirement to serve the subsequent sentence in a penitentiary. In cases where clients are facing multiple charges that carry a range of possible sentences, defence counsel may have the option of offering guilty pleas to some charges in exchange for the dropping of other charges. This strategy could be employed in cases where the cumulative sentences for all the charges would result in an over-two-year penitentiary sentence. If the client can negotiate a sentence for all charges that is less than two years, then Section 743.1(2) will not be triggered. In conclusion, Section 743.1(2) of the Criminal Code of Canada provides for mandatory incarceration in a penitentiary for persons who are convicted of an offence that carries a sentence of less than two years but who have received a prior sentence of imprisonment in a penitentiary. Strategic considerations include the nature of the offence, the timing of sentencing, setting aside previous sentences, and plea bargaining. Defence counsel should be aware of these considerations and employ appropriate strategies to minimize the impact of Section 743.1(2) on their clients.