INTRODUCTION AND BRIEF DESCRIPTION

If the court doesnt consider a matter regarding a person who has been convicted of an offense at the time of sentencing or verdict, they must set a date for a hearing within 90 days and can require the person to appear via closed-circuit television or other means.

SECTION WORDING

490.012(4) If the court does not consider the matter under subsection (1) or (3) at that time, the court (a) shall, within 90 days after the day on which it imposes the sentence or renders the verdict, set a date for a hearing to do so; (b) retains jurisdiction over the matter; and (c) may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel.

EXPLANATION

Section 490.012(4) of the Criminal Code of Canada refers to situations where the court does not consider an application for a record suspension (formerly known as a pardon) at the time of sentencing or verdict. In such cases, the court must, within 90 days of the imposition of sentence or rendering of verdict, set a date for a hearing to consider the matter. This section emphasizes that the court retains jurisdiction over the matter, meaning that it has the power to hear and decide on the application for a record suspension. The court may also require the person applying for the record suspension to appear by closed-circuit television or any other means that allow for simultaneous visual and oral communication between the court and the individual. Additionally, the section recognizes an individual's right to communicate privately with their legal counsel if they are represented. This ensures that the individual has access to legal advice and is able to protect their rights during the record suspension application process. Overall, this section seeks to ensure that individuals who are eligible for a record suspension have the opportunity to have their application considered by the court and that their rights are protected throughout the process. It also serves as a reminder that record suspensions are not automatic and require a formal application process.

COMMENTARY

Section 490.012(4) of the Criminal Code of Canada establishes a provision that deals with the issue of reviewing the state of a convicted person's criminal record. This section provides that if the court does not consider the matter of a convicted person's record suspension at the time of the verdict or sentence, the court shall set a hearing date within 90 days of the verdict or sentence to do so. Additionally, the court retains jurisdiction over the matter and may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication. In general, the purpose of this provision is to ensure that a convicted person's record is reviewed periodically. A record suspension, formerly known as a pardon, is a legal process that removes the entry of a person's criminal record from the Canadian Police Information Centre (CPIC) database. The purpose of a record suspension is to support a person's efforts to rehabilitation and reintegrate into the society after a conviction by removing the stigma associated with a criminal record. By requiring the court to set a hearing for a convicted person's record suspension within 90 days of the verdict or sentence, Section 490.012(4) ensures that the matter is addressed in a timely manner. This, in turn, can help to reduce any undue burden on the convicted person in the long run, especially if the person intends to seek employment, housing, or other opportunities where a background check is required. The second part of this provision, which allows for the court to require the convicted person to appear by closed-circuit television or other means, is also important. This provision recognizes that the convicted person may live in a different province or may be unable to attend the hearing due to various reasons such as illness or disability. By allowing the court to use technology-based solutions for communication, the provision ensures that the convicted person's right to appear before the court and have the opportunity to make submissions related to their record suspension is protected. It is worth noting that this provision of the Criminal Code of Canada is consistent with the principles of restorative justice. Restorative justice recognizes that a justice system should be focused on repairing the harm caused by the offence and that the punishment should aim to provide an opportunity for the offender to make amends and reintegrate into society. By allowing for periodic reviews of a convicted person's record suspension, Section 490.012(4) supports the principles of restorative justice by providing an opportunity for the convicted person to demonstrate their rehabilitation and reintegration into society. In conclusion, Section 490.012(4) of the Criminal Code of Canada establishes an important provision that ensures the timely review of a convicted person's record suspension. By setting a hearing date within 90 days of a guilty verdict or sentence and allowing for the use of technology-based solutions for communication, this provision recognizes the importance of reviewing a convicted person's record suspension while respecting their rights. Overall, Section 490.012(4) supports the principles of restorative justice by facilitating the rehabilitation and reintegration of a convicted person into society.

STRATEGY

Section 490.012(4) of the Criminal Code of Canada is an essential provision for the post-conviction review of a person's criminal record, sentence, or evidence presented during the trial. However, strategic considerations are necessary when dealing with this section of the Criminal Code of Canada. One of the critical strategic considerations is the timing of the hearing. The hearing must be held within 90 days after the day the court imposes the sentence or renders the verdict. Therefore, it is essential to make sure that the hearing is scheduled within the allotted 90-day period. Any delay may result in losing the chance to appeal or reconsider the verdict or sentence. Another strategic consideration is the type of communication used during the hearing. The court may require the person to appear by closed-circuit television or any other means that allows the court and the person to engage in simultaneous visual and oral communication, as long as the person is given the opportunity to communicate privately with counsel if they are represented by counsel. Therefore, it is essential to ensure that the technology used for communication is reliable and that the person appearing is adequately prepared to use it. Furthermore, the person appearing must have legal representation, and the lawyer must be prepared to present any new evidence or arguments to the court. Therefore, it is crucial to ensure that the lawyer assigned to the case is competent, knowledgeable, and experienced in post-conviction review hearings. Another strategic consideration is the evidence presented during the hearing. If the hearing is held under subsection (1) or (3), the court may consider any evidence that was not available during the trial. Therefore, it is essential to gather new evidence that could change the verdict or sentence and present it during the hearing. One of the strategies that could be employed when dealing with Section 490.012(4) of the Criminal Code of Canada is to prepare extensively for the hearing. This includes gathering new evidence, preparing the technology used for communication, and ensuring that legal representation is competent and experienced. Another strategy is to file a notice of appeal before the hearing, requesting an extension of time to file if necessary. This will allow for more time to gather evidence and prepare for the hearing. In conclusion, Section 490.012(4) of the Criminal Code of Canada provides a crucial post-conviction review process that allows individuals to appeal their verdict or sentence. However, strategic considerations are necessary when dealing with this section of the Criminal Code of Canada to ensure that the person appearing is adequately prepared, legal representation is competent, and new evidence is presented if necessary.