INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the courts to which an application for variation or revocation of an order can be made under certain circumstances.
SECTION WORDING
490.015(6) The application shall be made to (a) a superior court of criminal jurisdiction if (i) one or more of the orders to which it relates were made by such a court under section 490.012, or (ii) one or more of the orders to which it relates were made under section 227.01 of the National Defence Act and the Chief Military Judge does not have jurisdiction to receive the application under subsection 227.03(6) of that Act; or (b) a court of criminal jurisdiction, in any other case in which the application relates to one or more orders made under section 490.012.
EXPLANATION
Section 490.015(6) of the Criminal Code of Canada outlines the jurisdiction where an application can be made to set aside a court order under section 490.012. This section deals with the setting aside of forfeitures, restrictions, and prohibitions that may have been imposed by a court on an accused person. The section states that the application for setting aside the court order can either be made to a superior court of criminal jurisdiction or a court of criminal jurisdiction, depending on the circumstances of the case. If the order was made by a superior court of criminal jurisdiction under section 490.012, then the application must be made to the same court. Similarly, if the order was made under section 227.01 of the National Defence Act and the Chief Military Judge does not have jurisdiction to receive the application under subsection 227.03(6) of that Act, then the application must be made to a superior court of criminal jurisdiction. However, if the application relates to an order made under section 490.012 of the Criminal Code of Canada and none of the above-mentioned conditions apply, then the application can be made to any court of criminal jurisdiction. This section essentially lays out the procedure for an accused person to apply to have their restrictions or forfeitures lifted, and clarifies which court has jurisdiction to hear the case. It ensures that there is a clear process in place for the accused person to challenge any court orders that may have been imposed on them.
COMMENTARY
Section 490.015(6) of the Criminal Code of Canada lays down the procedural requirements that govern the application for record suspension, also known as a pardon. This section specifies that the application must be made to either a superior court of criminal jurisdiction or a court of criminal jurisdiction. The choice of court depends on the nature of the order to which the application relates. Subsection(a) of 490.015(6) requires the application to be made to a superior court of criminal jurisdiction if the order was made under section 490.012 of the Criminal Code or section 227.01 of the National Defence Act (NDA), and the Chief Military Judge does not have jurisdiction to receive the application under subsection 227.03(6) of the NDA. The NDA provides that an accused person tried by court-martial has the right to appeal decisions of the court-martial. It also permits the Chief Military Judge to grant a pardon or expunge a record. Subsection (a) recognizes that for orders made under section 227.01 of the NDA, the superior court has the jurisdiction to entertain an application for record suspension where the Chief Military Judge lacks jurisdiction. Under subsection (b), the application may be made to a court of criminal jurisdiction in all other cases where the order was made under section 490.012. This section authorizes the provincial or territorial court to receive an application where the order for which record suspension is sought was made under section 490.012. Section 490.012 provides for the various orders that the court may issue regarding the criminal record of a person who has been convicted, discharged, or acquitted of an offense. It includes orders and prohibitions relating to the disclosure of the record, access by employers, fingerprint destruction, and suspension of firearms prohibitions, among others. Record suspension is an essential component of Canada's criminal justice system, as it affords individuals who have served their sentences and demonstrated rehabilitation an opportunity to reintegrate into society. The granting of record suspension provides offenders with a second chance at life by removing the stigma of a criminal record that may be a barrier to employment, housing, or other opportunities. The Criminal Records Act (CRA) sets out the criteria that must be satisfied before the Parole Board of Canada grants a record suspension. These include, among others, the completion of the sentence imposed, payment of all fines, and rehabilitation. The CRA also sets out the waiting periods that vary depending on the nature of the offense, from five to ten years. Section 490.015(6) ensures that the application for the record suspension is made in the proper forum. The choice of court ensures that the nature of the order, as well as the appropriate jurisdiction, are considered in determining the court to which the application must be made. The requirement for the application to be made to the appropriate court ensures that the procedure is robust and effective in achieving the desired outcome.
STRATEGY
Section 490.015(6) of the Criminal Code of Canada outlines the requirements for making an application to a court regarding orders made under section 490.012 of the Criminal Code. This section of the code has significant implications for individuals who have been subject to such orders, as well as for their legal representatives. Some of the strategic considerations that should be taken into account when dealing with this section of the Criminal Code are as follows: 1. Identify the appropriate court: Given the provisions of section 490.015(6), it is essential to identify the appropriate court to which the application should be made. If one or more of the orders were made by a superior court of criminal jurisdiction, the application must be made to such a court. On the other hand, if the orders were made under section 490.012, and not by a superior court of criminal jurisdiction, then the application should be made to a court of criminal jurisdiction. 2. Know the rules of procedure: When making an application under section 490.015(6), it is important to follow the rules of procedure set out by the relevant court. These rules will vary depending on the court to which the application is being made and must be carefully adhered to in order to avoid any procedural issues that could adversely affect the outcome of the application. 3. Timing: The timing of the application can be critical, and careful consideration must be given to when the application should be made. In some circumstances, an application may be made immediately following an order being made, while in other situations it may be appropriate to wait until a specific period of time has elapsed. Your legal representative should be able to advise you on the best timing for your specific case. 4. Document Gathering: In order to make a strong case, it is essential to gather all relevant documents. This includes any court orders that have been made, as well as any supporting documentation that can be used to reinforce the need for the order to be revoked or varied. This may require obtaining copies of medical reports, employment records, and other relevant documents. 5. Legal Representation: Given the complexity of making an application under section 490.015(6), it is strongly recommended that individuals seek legal representation. A qualified lawyer with experience in this area will be able to guide you through the process and help you to build a strong case. Some strategies that could be employed when making an application under section 490.015(6) include: 1. Prioritizing confidentiality: Given that many of the orders made under section 490.012 relate to situations involving intimate partner violence or stalking, it is essential to prioritize confidentiality when making an application to have those orders revoked or varied. Your legal representative can advise you on the specific measures that can be taken to protect your privacy. 2. Highlighting changes in circumstances: Where applicable, it can be helpful to highlight any changes in circumstances since the order was made. For example, if an individual has completed a rehabilitation program or has found new employment, this may be relevant when making an argument for the order to be varied or revoked. 3. Gathering witness testimony: In situations where the court may benefit from hearing from other individuals who are familiar with your circumstances, it may be worthwhile to gather testimony from witnesses. This can include family members, friends, or professionals who can speak to your character or specific circumstances. Overall, when dealing with section 490.015(6) of the Criminal Code, it is essential to carefully consider the specific circumstances of your case and work with a qualified legal representative to develop a strong case for revoking or varying the order. By understanding the requirements of the section and following appropriate strategies, you can increase your chances of achieving a successful outcome.