Tuesday, June 11, 2013

Conditional sentence for an offence of violence

R. v. Pottie, 2013 NSCA 68 deals with the often vexed question of a conditional discharge for a violent offence.

 The Criminal Code provides:

 730. (1) Where an accused, other than an organization, pleads guilty to or is found guilty of an offence, other than an offence for which a minimum punishment is prescribed by law or an offence punishable by imprisonment for fourteen years or for life, the court before which the accused appears may, if it considers it to be in the best interests of the accused and not contrary to the public interest, instead of convicting the accused, by order direct that the accused be discharged absolutely or on the conditions prescribed in a probation order made under subsection 731(2).

 The Court, always, is to decide what is a just and proper sentence. That said, a conditional discharge is available for a violent offence. In Pottie the Court writes:

[25] This appeal deals specifically with whether a conditional discharge could have been granted for a violent offence. The Crown acknowledges that it was available to the judge. That specific issue has been dealt with a number of times in the past. Counsel for the appellant has provided us with a number of cases where conditional discharges have been granted for violent offences. There are also a large number of cases involving violent offences where conditional discharges were found to not be appropriate.

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