INTRODUCTION AND BRIEF DESCRIPTION
An order made under subsection 490.012(1) applies for life if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one designated offence.
SECTION WORDING
490.013(2.1) An order made under subsection 490.012(1) applies for life if the person is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition "designated offence" in subsection 490.011(1).
EXPLANATION
Section 490.013(2.1) of the Criminal Code of Canada deals with orders that can be made against individuals who have been convicted of or found not criminally responsible for certain designated offenses. Under this section, an order made under subsection 490.012(1) will apply for life if the individual is convicted or found not criminally responsible for multiple offenses listed in the definition of designated offense" in subsection 490.011(1). The purpose of this section is to provide additional protection to the public against individuals who have committed more than one designated offense. A designated offense refers to a serious criminal offense such as murder, sexual assault, or kidnapping, and the section lists several specific offenses that fall within this definition. When an individual is convicted or found not criminally responsible for one designated offense, they may be subject to certain orders or restrictions such as a prohibition on possessing firearms, reporting to a probation officer, or being subject to a curfew. However, when an individual is convicted or found not criminally responsible for more than one designated offense, the court can impose a lifetime order to further restrict their behavior and protect society. Overall, section 490.013(2.1) is aimed at keeping the public safe by providing courts with the ability to impose harsher orders on individuals who have a history of committing serious offenses.
COMMENTARY
Section 490.013(2.1) of the Criminal Code of Canada deals with the application of orders made under subsection 490.012(1). This provision states that such orders will apply for life if an individual is convicted of, or found not criminally responsible on account of mental disorder for, more than one of the designated offences referred to in various paragraphs of subsection 490.011(1). The designated offences referred to in this provision are serious crimes that have significant societal impact. They include offences such as murder, sexual assault, and terrorism-related offences. The purpose of this provision is to ensure that individuals who commit such serious offences are subject to appropriate and effective legal measures to prevent them from committing further offences in the future. By making such orders applicable for life, the provision creates a strong deterrent effect and ensures that offenders who have committed multiple serious offences must live with the restrictions imposed by the order for the rest of their lives. This serves both the goal of public safety and the rehabilitation of the offender. The life-long application of such orders raises issues around individual privacy and potential human rights violations. However, the provision includes several safeguards to address these concerns. Firstly, the provision limits the application of the order to those who have committed multiple serious offences. Secondly, the provision only applies to offences referred to in specific paragraphs of subsection 490.011(1), and therefore the order cannot be applied in cases involving non-serious offences. Thirdly, an individual subject to such an order is entitled to apply for a variation or termination of the order. Overall, Section 490.013(2.1) strikes a balance between protecting public safety and safeguarding individual rights. By making orders applicable for life in cases of multiple serious offences, this provision ensures that offenders remain under legal supervision and subject to appropriate restrictions for the rest of their lives. This serves not only the goal of ensuring public safety but also promotes the rehabilitation and reintegration of the offender into society.
STRATEGY
Section 490.013(2.1) of the Criminal Code of Canada poses significant challenges to individuals who have been convicted of multiple designated offences. Once an individual is convicted of, or found not criminally responsible on account of mental disorder for, more than one offence referred to in paragraph (a), (c), (c.1), (d), or (e) of the definition designated offence" in subsection 490.011(1), an order made under subsection 490.012(1) will apply for life. The order under subsection 490.012(1) requires the individual to provide a sample of their DNA to the police. This means that the DNA sample will be included in the National DNA Data Bank and used for various forensic purposes. Therefore, when dealing with this section of the Criminal Code of Canada, it is advisable to consult a criminal defense lawyer to develop a strategic plan to mitigate its effects as much as possible. One strategy that could be employed is to challenge the validity of the order under subsection 490.012(1). A lawyer could argue that the order was not made in accordance with the legal requirements or that there are other exceptional circumstances that warrant challenging the order. If the validity of the order is successfully challenged, the individual may no longer be required to provide a sample of their DNA to the police. Another strategy that could be employed is to challenge the existence of the second conviction or the finding of not criminally responsible on account of mental disorder for the second designated offence. This strategy requires a comprehensive understanding of the facts surrounding the second conviction or finding of not criminally responsible on account of mental disorder and a thorough examination of the legal framework that led to such a finding. Furthermore, it is advisable to engage a criminal defense lawyer to negotiate with the prosecutor to reduce the sentence of the second designated offence so that it does not result in the application of the lifetime order. This strategy requires a clear negotiation approach, including the development of effective bargaining chips and an understanding of the prosecutor's position. Finally, a strategic consideration for dealing with this section of the Criminal Code of Canada is for individuals to take measures to prevent themselves from being convicted of a second designated offence. This preventive measure includes avoiding activities that may lead to a second conviction, such as abstaining from use of illicit drugs or avoiding risky behaviors, as well as seeking counseling for their mental health concerns. In conclusion, section 490.013(2.1) of the Criminal Code of Canada poses significant challenges to individuals who have been convicted of multiple designated offences. To mitigate the effects of this section, it is vital to consult with a criminal defense lawyer to develop a strategic plan that may include challenging the validity of the order, challenging the existence of the second conviction or the finding of not criminally responsible on account of mental disorder, negotiating with the prosecutor, and taking preventive measures to avoid conviction of another designated offence.