Criminal Code of Canada - section 490.026(3) - More than one offence

section 490.026(3)

INTRODUCTION AND BRIEF DESCRIPTION

After 20 years, a person may apply for a termination order if they were sentenced or found not criminally responsible for a designated offence listed in the notice served under section 490.021.

SECTION WORDING

490.026(3) If more than one offence is listed in the notice served under section 490.021, the person may apply for a termination order if 20 years have elapsed since they were sentenced, or found not criminally responsible on account of mental disorder, for the most recent offence referred to in paragraph (a), (c), (c.1), (d) or (e) of the definition "designated offence" in subsection 490.011(1) of this Act or in paragraph (a) or (c) of the definition "designated offence" in section 227 of the National Defence Act.

EXPLANATION

Section 490.026(3) of the Criminal Code of Canada allows individuals who have been convicted of multiple offenses listed under the definition of designated offense" in subsection 490.011(1) or section 227 of the National Defence Act to apply for a termination order. A termination order allows individuals to have their DNA samples removed from the national DNA databank. To be eligible for a termination order, the person must have been sentenced or found not criminally responsible on account of mental disorder for the most recent offense referred to in the listed paragraphs and at least 20 years must have elapsed since the sentencing or finding of not criminally responsible. This section aims to balance public safety concerns with the right to privacy. While maintaining a national DNA databank helps with solving and preventing crimes, it can also have serious privacy implications for individuals whose DNA is collected and kept in the database. This section allows individuals who may have made mistakes in the past to have their privacy rights recognized and protected, while still maintaining national security.

COMMENTARY

Section 490.026(3) of the Canadian Criminal Code deals with the possible termination of a person's record suspension for multiple offenses. This provision states that if a notice has been served under Section 490.021 of the Criminal Code for multiple offenses, a person may apply for a termination order if 20 years have passed since they were sentenced or found not criminally responsible on account of mental disorder for the most recent offense referred to in the definition of "designated offense" in subsection 490.011(1) of the Criminal Code or in paragraph (a) or (c) of the definition of "designated offense" in Section 227 of the National Defence Act. A record suspension, formerly known as a pardon, is a mechanism under Canadian law that enables individuals convicted of certain offenses to have their criminal record set aside. This allows them to lead normal lives, and not be subject to discrimination based on their past mistakes. However, this provision under the Criminal Code is relevant because it stipulates that a person may be denied a record suspension if they have been convicted of multiple offenses within a certain time frame. The rationale behind this provision is to ensure that individuals who have committed multiple serious offenses are not able to simply wipe their criminal records clean, and continue with their lives as if nothing has happened. It is particularly relevant in cases where the individual has committed offenses of a serious nature, such as sexual assault, murder, or serious drug offenses. It is important to note, however, that this provision only applies if 20 years have passed since the person was sentenced or found not criminally responsible on account of mental disorder for the most recent offense. This means that if a person has committed multiple offenses within a period of less than 20 years, they may not be eligible for a record suspension, even if they have served their time and have not re-offended. Overall, Section 490.026(3) of the Criminal Code serves an important function in preventing those who have committed serious multiple offenses from being able to wipe their criminal record clean without some sort of penalty or consequence. It ensures that there is a significant time lapse between the commission of the offenses and the possibility of a record suspension. This helps to ensure the safety and security of the general public, while also providing a mechanism for individuals who have served their time to move on with their lives, even if they have made past mistakes.

STRATEGY

Section 490.026(3) of the Criminal Code of Canada is a provision that allows individuals who have committed certain designated offences, as defined in subsection 490.011(1) of the Act or paragraph (a) or (c) of section 227 of the National Defence Act, to apply for a termination order after 20 years have elapsed since their sentencing or finding of not criminally responsible on account of mental disorder. This provision raises a number of strategic considerations for lawyers and their clients when dealing with it. One of the key strategic considerations is timing. Clients and their lawyers need to assess when the 20-year period has elapsed since their sentencing or finding of not criminally responsible on account of mental disorder for the most recent designated offence listed in the notice served under section 490.021. This requires careful record-keeping and tracking of the relevant dates. Lawyers need to be proactive in advising clients of the possibility of applying for a termination order under this provision, and to ensure that they are aware of the eligibility criteria and procedural requirements. Another strategic consideration is the nature of the designated offence in question. The provision only applies to certain designated offences, and not all criminal offences. Therefore, clients and their lawyers need to determine whether the offence in question is eligible for a termination order under this provision. They also need to consider the seriousness of the offence and whether it is likely to have an impact on the client's ability to obtain a termination order. For example, if the offence was particularly heinous or involved violence, it may be more difficult for the client to persuade a judge to grant a termination order. A third strategic consideration is the strength of the client's case. Clients need to demonstrate that they have been rehabilitated and that there is no longer any risk to public safety. Therefore, clients and their lawyers need to carefully prepare their case, gathering evidence of their rehabilitation, such as evidence of counselling, employment, education, volunteer work, and other positive aspects of their life. They also need to demonstrate that they have a support system in place and that they are committed to continuing their positive trajectory. In terms of strategies that could be employed, one key strategy is to work proactively with clients to help them prepare for a termination order application well in advance. This could involve setting measurable rehabilitative goals, such as obtaining employment or completing a counselling program, and tracking progress towards these goals. It could also involve gathering documents and evidence that demonstrate the client's rehabilitation, such as letters of reference, certificates of completion, and other documentation. Another strategy is to work with clients to develop a strong narrative and persuasive argument that they have been rehabilitated and that there is no longer any risk to public safety. This could involve highlighting positive aspects of the client's life, such as employment, education, volunteer work, and other accomplishments. It could also involve demonstrating that the client has taken responsibility for their actions and has made amends where possible. Finally, it may be useful to work with clients to develop a support system that can help them demonstrate their ongoing commitment to rehabilitation. This could involve identifying family members, friends, or other supportive individuals who are willing to provide references or other evidence of the client's progress. It could also involve developing a plan for ongoing counselling or other support services that can help the client continue to make positive changes in their life. Overall, Section 490.026(3) of the Criminal Code of Canada raises a number of strategic considerations for lawyers and their clients. By working proactively to prepare for a termination order application, developing compelling arguments in support of the application, and demonstrating ongoing commitment to rehabilitation, clients may be able to successfully obtain a termination order under this provision.