INTRODUCTION AND BRIEF DESCRIPTION
Section 785 of the Criminal Code of Canada defines the term sentence and includes various orders and dispositions.
SECTION WORDING
785 In this Part, "sentence" includes (a) a declaration made under subsection 199(3), (b) an order made under subsection 109(1) or 110(1), section 259 or 261, subsection 730(1) or 737(3) or (5) or section 738, 739, 742.1 or 742.3, (c) a disposition made under section 731 or 732 or subsection 732.2(3) or (5), 742.4(3) or 742.6(9), and (d) an order made under subsection 16(1) of the Controlled Drugs and Substances Act.
EXPLANATION
Section 785 of the Criminal Code of Canada provides clarity on what qualifies as a "sentence" in regards to specific legal actions taken against an offender. This inclusive definition ensures that all relevant legal measures taken against an offender are still considered part of their sentence, regardless of the terminology used. Subsection (a) includes a declaration made under subsection 199(3), which refers to a finding of guilt but no specific punishment being given. Subsections (b) and (c) refer to orders and dispositions made under various sections of the Criminal Code, such as probation, conditional sentences, or fines. These include subsections dealing with violent and sexual offences, and provide for instances where offenders may not be incarcerated and are instead given alternative forms of punishment to serve. Finally, subsection (d) refers to an order made under subsection 16(1) of the Controlled Drugs and Substances Act. This order deals expressly with the seizure and forfeiture of illegal drugs, currency, and other instruments of drug trafficking. Overall, this section ensures that all relevant legal measures taken against an offender are still considered part of their sentence, regardless of the specific action taken. It allows for flexibility in sentencing and provides clarity for both legal professionals and offenders.
COMMENTARY
Section 785 of the Criminal Code of Canada is a provision that defines the term "sentence" in the Canadian criminal justice system. The section outlines what can be included in the definition of "sentence," which has significant implications for how the justice system handles offenders. The primary purpose of the section is to extend the definition of "sentence" beyond the traditional notion of a custodial sentence or fine. The section lists the various forms that a sentence can take, including orders made under specific subsections of the Criminal Code and other statutes. For example, a declaration made under subsection 199(3) of the Criminal Code, which deals with the review of parole ineligibility periods, is included in the definition of "sentence." Similarly, an order made under subsection 16(1) of the Controlled Drugs and Substances Act, which allows for the forfeiture of property used in connection with drug offenses, is also considered to be a type of sentence. The inclusion of these various forms of sentence is significant because it means that offenders can be subject to a range of penalties beyond imprisonment or fines. For example, an offender may be subject to a restitution order under section 738 of the Criminal Code, which requires them to pay compensation to victims of their crimes. This type of order is often used in cases where the offender has caused financial harm to their victims, and can be an important component of their rehabilitation and reintegration into society. Similarly, orders made under section 259 or 261 of the Criminal Code, which deal with the detention of persons found not criminally responsible or unfit to stand trial, are also considered to be sentences. This means that individuals who are subject to these orders are still considered to be under the authority of the criminal justice system, and can be subject to restrictions and conditions that are designed to protect public safety. The definition of "sentence" in section 785 also recognizes the importance of non-custodial sentences, such as probation and community service orders. These types of sentences are often used in cases where the offender does not pose a significant risk to public safety, but still requires some form of intervention to address the underlying causes of their offending behavior. By including these types of sentences in the definition of "sentence," section 785 reinforces the idea that punishment and rehabilitation are not mutually exclusive goals of the criminal justice system. Overall, section 785 is an important provision of the Criminal Code of Canada that recognizes the diverse range of penalties that can be imposed on offenders. By expanding the definition of "sentence" to include a variety of orders and dispositions, the section ensures that the justice system can respond appropriately to the needs of individual offenders and the wider community.
STRATEGY
Section 785 of the Criminal Code of Canada lays out the breadth of the meaning of the term sentence." It brings together a range of different measures that can be levied against individuals found guilty of different crimes under Canadian law. The section lists a series of specific penalties, orders, dispositions, and declarations, and includes others so broad as to cover them all. Legal professionals, including lawyers, judges, and law enforcement agents, must take a range of strategic considerations into account when working with Section 785. Understanding how it operates is only the first step because the strategic considerations go far beyond the narrow provisions of the code. One strategic consideration deals with the intricacies of individual cases. While the code lays out a range of possible penalties and measures to take against individuals found guilty of various crimes, every case is different. A case where mitigating factors are present may lead to a lesser punishment, or even a change in what punishment is appropriate for a given crime. Lawyers, judges, and other legal practitioners must take all available factors into account when considering what sentence is most appropriate. Another strategic consideration is which provisions of the Criminal Code or other relevant legislation to rely on. It can be challenging to determine which subsection of Section 785 applies to a given case. Factors to consider can include the nature of the crime, the present circumstances of the accused, and the victim's needs. Determining precisely which subsections are applicable will guide lawyers and judges when deciding what level of sentencing or punishment to recommend or impose. It is also essential to evaluate the appropriateness of potential sentences. A sentence that is too light may not represent society's values or provide adequate justice for the victims of crime. On the other hand, a sentence that is too harsh will not promote rehabilitation or offer an opportunity for individuals to integrate back into society. Striking the appropriate balance requires case-by-case analysis based on the specifics of the crime committed and other individual circumstances. Another strategic consideration is determining when and how to seek an appeal or reconsideration of a sentence. If any party involved - whether the accused, the Crown, or a defense attorney - feels that the sentence is just punishment, an appeal may be initiated. However, the appeal must be based on substantive issues of law or errors by the trial judge. Strict timelines must also be adhered to when seeking an appeal, which necessitates a focused and swift response. In conclusion, several strategic considerations come into play when working with Section 785 of the Criminal Code of Canada. Legal professionals must consider the intricacies of each case, carefully select appropriate subsections of the code or related legislation, evaluate the appropriateness of potential sentences, and determine when and how to initiate appeals. All of these considerations work together to ensure that the Canadian justice system is functioning effectively and fairly.