INTRODUCTION AND BRIEF DESCRIPTION
This section requires the transfer of a person serving multiple sentences of less than two years each to a penitentiary if the unexpired portions of those sentences amount to two or more years.
SECTION WORDING
743.1(5) Where, at any time, a person who is imprisoned in a prison or place of confinement other than a penitentiary is subject to two or more terms of imprisonment, each of which is for less than two years, that are to be served one after the other, and the aggregate of the unexpired portions of those terms at that time amounts to two years or more, the person shall be transferred to a penitentiary to serve those terms, but if any one or more of such terms is set aside or reduced and the unexpired portions of the remaining term or terms on the day on which that person was transferred under this section amounted to less than two years, that person shall serve that term or terms in accordance with subsection (3).
EXPLANATION
Section 743.1(5) of the Criminal Code of Canada deals with the transfer of prisoners from prisons or places of confinement to a penitentiary. The section specifically applies to individuals who are subject to two or more terms of imprisonment, each of which is for less than two years, and whose aggregate unexpired portions amount to two years or more. In this case, the person shall be transferred to a penitentiary to serve those terms. The purpose of this section is to ensure that individuals who receive multiple sentences of imprisonment, even if each sentence is relatively short, do not end up serving their time in a less serious facility. Penitentiaries, which are higher security facilities, are considered more appropriate for individuals who have been sentenced to longer terms of imprisonment or who are considered to be higher risk. By requiring the transfer of individuals who meet the criteria outlined in this section, the law seeks to ensure that prisoners are serving their sentences in the most appropriate facility for their level of risk. However, the section also provides for situations where one or more of the terms of imprisonment are set aside or reduced, and the unexpired portions of the remaining term or terms amount to less than two years. In this case, the person will not be transferred to a penitentiary, but will rather serve their remaining time in accordance with subsection (3) of the same section. This subsection outlines the general rules for the calculation of sentences of imprisonment and ensures that individuals are treated fairly and consistently under the law. Overall, section 743.1(5) plays an important role in ensuring that individuals who receive multiple sentences of imprisonment are serving their time in the most appropriate facility and in accordance with the principles of justice and fairness.
COMMENTARY
Section 743.1(5) of the Criminal Code of Canada deals with the transfer of prisoners from one facility to another. This section specifically deals with the transfer of individuals who are serving multiple terms of imprisonment that do not exceed two years, but when aggregated, amount to two years or more. The purpose of this section is to ensure that individuals serving multiple shorter sentences are ultimately transferred to a federal penitentiary to complete their sentences. This provision is significant as it ensures that those who have been convicted of more serious crimes are held in a more secure facility than those who have been sentenced to shorter periods of imprisonment. It also ensures that those serving multiple shorter sentences are not released earlier than they should be due to the short term nature of their individual sentences. However, it is important to recognize that this provision can have consequences for those individuals who are transferred to a penitentiary. Penitentiaries are often located far away from an individual's home, family, and support network, making it difficult for them to maintain contact with loved ones. This can have a negative impact on an individual's mental health and well-being, as research shows that social support is a key factor in reducing recidivism rates. Furthermore, penitentiaries often have stricter rules and regulations than other facilities, which can be challenging for some individuals to adjust to. Additionally, federal penitentiaries tend to have more limited programming and rehabilitation services available than other facilities. This means that individuals who are transferred to a penitentiary may have fewer opportunities to access educational and vocational training, substance abuse treatment, and mental health services. In conclusion, while Section 743.1(5) of the Criminal Code of Canada is an important provision that ensures individuals who have received multiple shorter sentences are ultimately held in a more secure and appropriate facility, it is important to recognize the potential negative consequences of such transfers. Efforts should be made to ensure that individuals who are transferred to a penitentiary are able to maintain contact with their support networks and have access to appropriate programming and rehabilitation services. This may help to reduce the likelihood of reoffending and ensure that individuals are able to successfully reintegrate into their communities upon release.
STRATEGY
Section 743.1(5) of the Criminal Code of Canada is a provision that deals with the transfer of prisoners from a prison or place of confinement to a penitentiary if they are subject to two or more terms of imprisonment, each of which is less than two years, but the aggregate of the unexpired portions of those terms amounts to two years or more. As such, it is an important section that has strategic considerations for both the prosecution and defense in criminal cases. From the prosecution's perspective, section 743.1(5) can be strategically used to ensure that offenders who are serving multiple short sentences are transferred to penitentiaries, where they are likely to serve longer sentences. This is because penitentiaries are designed to hold more serious offenders and have more resources to deal with them than regular prisons or places of confinement. Therefore, from a deterrence perspective, the prosecution may seek to use this provision to ensure that offenders are sent to more secure facilities where they are less likely to reoffend. From the defense's perspective, section 743.1(5) can be strategically used to argue for a reduction in sentence or for alternative sentencing options. For example, if an offender is subject to multiple short sentences and the aggregate of the unexpired portions of those terms amounts to two years or more, their lawyer may argue that the offender should be transferred to a penitentiary where they are likely to serve more time than necessary. Alternatively, the lawyer may argue that community service or probation would be a more appropriate sentence, and that transferring the offender to a penitentiary would be counterproductive and costly. There are several strategic considerations that both the prosecution and defense must keep in mind when dealing with section 743.1(5). Firstly, they must consider the impact of the provision on the offender and their family. The transfer of an offender to a penitentiary can have a significant impact on their mental and emotional well-being, as well as their ability to maintain relationships with their family and friends. Therefore, the prosecution and defense must consider the impact of the provision on the offender's life and their ability to reintegrate into society once their sentence is completed. Secondly, the parties must consider the cost of sending an offender to a penitentiary. Penitentiaries are more expensive to operate than regular prisons or places of confinement, and therefore sending an offender to a penitentiary can be costly to the taxpayer. Therefore, the parties must weigh the cost of sending an offender to a penitentiary against the deterrent effect that a longer sentence may have on the offender and other potential offenders. Finally, the parties must consider the overall sentence that is appropriate for the offense. Section 743.1(5) is only one of several factors that must be considered when determining an appropriate sentence. The parties must also consider the nature and severity of the offense, the offender's criminal history, and any mitigating or aggravating factors that may be present. Therefore, the use of section 743.1(5) must be balanced against other factors that may affect the overall sentence. In terms of strategies that could be employed when dealing with section 743.1(5), both the prosecution and defense may seek to negotiate a plea agreement that takes into account the potential transfer of an offender to a penitentiary. For example, the prosecution may agree to reduce the number of charges or to seek a lesser sentence in exchange for the offender agreeing to serve their sentence in a penitentiary. Alternatively, the defense may argue for alternative sentencing options, such as probation, in exchange for the offender agreeing to plead guilty. Overall, section 743.1(5) of the Criminal Code of Canada has significant strategic considerations for both the prosecution and defense in criminal cases. When dealing with this provision, the parties must consider the impact on the offender and their family, the cost of sending an offender to a penitentiary, and the overall sentence that is appropriate for the offense. Through negotiation and careful consideration, both the prosecution and defense can work to ensure that the sentence handed down is fair and appropriate for all parties involved.