Are you in possession of the next great idea or invention? Do you have a piece of equipment or technology that will set you apart from other competitors in your industry Is it time for you to take steps to protect yourself and your intellectual property?

Author: Anika Helen - Paralegal Edited By: Ryan Carson

The purpose of proportionality is based on fairness and just. Proportionality is imperative when it comes to sentencing a person who has been convicted of a crime. It is important to prevent unjust punishment for crimes that can be dealt with rehabilitation or other means of help.

According to the Criminal Code, Section 718.1 states that fundamental principle that the sentence must be proportionate to gravity of offence and degree of responsibility of offender.

Proportionality is the governing principle when it comes to sentencing. The sentence should not be greater than the offender’s moral liability. This is important because it ensures that there is justice for the offender. Every case is different and has its own set of facts and specific situation that need to be considered during the sentencing process. Proposing sentence and deciding on a sentence is not easy for anyone, but it should be done with careful consideration as it can change someone’s entire life. In provincial court matters, there are many offenders that come in everyday for petty crimes and receive sentences that affect their lives to a greater extent than we think. A sentence should be fair and just so that the offender can learn from it and not have their lives destroyed by a mistake. And sometimes, that is all it is. A mistake. Sometimes, people make mistakes and pay a higher price for it than they should.

Section 718.2 states – “A court that imposes a sentence shall also take into consideration the following principles:

A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and without limiting the generality of the foregoing,
- Evidence that offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or
- Evidence that the offender, in committing the offence, abused a position of trust or authority in relation to the victim shall be deemed to be aggravating circumstances;
A sentence should similar to sentences imposed on similar offenders for similar offences committed in similar circumstances;
Where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh;
An offender should not be deprived of liberty, if less restrictive sanctions may be appropriate in the circumstances; and
All available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders.”

It comes down to the concept of Restorative Justice. It is a recent concept in our justice system that puts emphasis on dealing with the wrong done to a person and community. The purpose of this is to shift the focus from an offender to helping and healing victims of the offender. Programs exist to repair relationships with the community. It involves the voluntarily participation of the victim, the offender and the members of the community to have discussions. The purpose is to talk, fix the damage and restore the relationships in the community to prevent further crimes from happening. The key is for the offender to accept and acknowledge responsibility for the crime committed and the harm done to the victim. Options like group conferencing, reconciliation panels, healing circles and victim-offender mediation are available these days to help the community and the people in it.

It is important to understand this section of the Criminal Code because sentencing is a huge part of the justice system. While it is imperative that offenders get proper punishments for what they have done, it is also important that sentencing should be proportionate to the level of crime committed. Sometimes, lives can be healed and changed with a bit of consideration and sympathy. New and young offenders can learn from their mistakes without having to give up on their lives.

Articles written by Anika Helen:

Common Summary Conviction Offences Impact of COVID-19 on Landlords and Tenants Who is a Litigation Guardian and What Are Their Duties?

Disclaimer

The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.

Author: Anika Helen - Paralegal
Edited By: Ryan Carson

“Summary” means in a quick and simple manner. Summary conviction offences are considered less serious than indictable offences because they are punishable by shorter prison sentences and smaller fees. The penalty for these offences is found in s.787(1) of the Criminal Code, which provides a maximum punishment of a $5,000 fine or a term of imprisonment of not more than two years less a day or both.

It is extremely important to read the Code in detail for each offence. For every offence, the Code has listed what the Crown has to prove beyond a reasonable doubt. As with all offences, the Crown must prove both actus reus and mens rea of the offence beyond a reasonable doubt. That is, the act or the omission of the offence must be proven as well as the criminal intent. The accused must have had the mental capacity and the intent to commit the offence. The offence cannot have been the result of an accident. Therefore, the usual defence in criminal cases is a lack of intent. However, the intent may be satisfied by the intent to commit the act rather than by the intent to do something wrong.

What are the most common types of summary conviction offences?

Causing a Disturbance – conduct that disturbs public peace and order in or near a public place is an offence according to the Code. The conduct may be fighting, shouting, singing, using insulting or obscene language, loitering, being drunk, discharging firearms, or impending harassing or molesting other persons. To make out a case, the Crown must prove that the accused was not in a dwelling home and was engaging in one of the listed acts. The Crown also must prove that the accused was in or near a public place and someone was actually disturbed by the acts listed.

Trespassing at Night – Loitering or “prowling” on another person’s property without permission and without an excuse. Loitering means wandering with no precise definition and prowling includes a notion of evil. A prowler does not act causally, but with a purpose. In this case, the Crown does not need to prove that the accused intended to commit a specific evil act, but only that the accused person was loitering and prowling intentionally on another person’s property without an excuse. This offence is charged along with another offence, such as theft under $5,000 or possession of a break-in instrument. For example, a person might be charged with trespassing at night when the person entered a vehicle in a driveway to steal property from the vehicle.

Taking a Motor Vehicle Without Consent – “Joy riding” is the common term for this offence. This requires that the motor vehicle be taken without the owner’s consent. A person can be charged with this offence even if they are just a passenger in the vehicle that has been taken without consent. Possessing a stolen vehicle is an offence regardless of whether a person stole it or not. It is assumed that if a person has possession of a stolen vehicle, that it is the person themselves who stole the vehicle. The only defence available in a scenario where someone has possession of a stolen vehicle is that they had no idea that the vehicle was stolen.

Fraudulently obtaining food, beverage or accommodation – s. 364(1) of the Code states that every one who fraudulently obtains food, a beverage or accommodation at any place that is in the business of providing those things is guilty of an offence punishable on summary conviction. A common example of this is, not paying a restaurant bill. For this offence, the Crown must prove that the person intended not to pay for food, beverage or accommodation stolen.

Transportation Fraud – it is a criminal offence to obtain transportation in a fraudulent way. This means that any free or discounted ride obtained by intentional deceit or falsehood can lead to these charges. This offence carries a penalty of up to six months in jail and a criminal record. An example of this offence includes not paying for public transportation, such as TTC or Go Transit. However, the fraud must be intentional. A mistake can be forgiven by the court unless the person intended not to pay.

Attempts and Accessories After the Fact, Summary Conviction – anyone who attempts to commit a summary conviction offence or is an accessory after the fact to such an offence is also guilty of a summary conviction offence. An accessory after the fact is defined in s.23(1) as one who, knowing that a person has been a party to the offence, receives, comforts or assists that person for the purpose of enabling them to escape. A common example of this would be helping someone to hide to get away after they have robbed a bank or stolen a vehicle.

When charged with a summary conviction offence, it is best to reach out to a criminal lawyer or a paralegal who has experience in the field. Every situation has different circumstances. It is ideal to get help from someone who is experienced rather than defending one’s self alone. Sometimes, a mistake or an unfortunate situation can lead to these charges where there was no intent. A legal representative would be able to defend a person in those circumstances, so that the person’s record does not get tainted because of a mistake or an act they did not commit.

Articles written by Anika Helen:

Impact of COVID-19 on landlords and tenants Who is a litigation guardian and what are their duties?

Disclaimer